24 Conn. 230 | Conn. | 1855
We do not consider it necessary to examine the question as to the title to the premises sought to be aparted, which has been raised before us, because we are of opinion that this bill should be dismissed, on the ground that, when it was brought, the plaintiff was not in possession óf said premises.
It was an established rule of the common law, by which the writ of partition would lie only between coparceners, that the plaintiff must be in possession, or seized, of the land when the writ was brought. Co. Lit., 167, a; and since the remedy by partition has been extended to joint tenants, and tenants in common, the same rule has been uniformly adopted, whether the remedy was sought by writ or bill in equity. 1 Sw. Dig., 103. Our statute, authorizing the superior court, as a court of equity, to order partition of real estate, held in joint tenancy, tenancy in common, or coparcenary, does not introduce any different rule on this subject.
The committee, in this case, find the following facts. In 1790, S. Forbes and N. Church became tenants in common, in fee, of the premises described in the bill. In 1836, Church died, having had, for many years before his death, the charge
With respect to the agreement of July 23,1844, we do not think that it changed the character of the possession of
Whatever may have been the character of the possession of the premises, prior to July, 1844, when the heirs of Forbes requested Oliver Ames to recognize their title, it is clear that, since that time, there has been a constant actual ouster of those heirs by the said Oliver, and the Ames Iron Company claiming under him, who have, from thence to the present time, been in the open, exclusive, uninterrupted, and adverse possession of the premises, expressly claiming the sole title in themselves, and denying the title of said heirs. We concur fully with the authorities which determine that, from the peculiar and intimate connection existing between tenants in common of real estate, the proof of an ouster, by one of another of them, ought to be of the most satisfactory nature; but in this case, if the fact of such ouster is not positively found by the committee, the evidence of it is strong enough to satisfy the strictest requirements, on a question of this kind.
As, therefore, the plaintiff was not in possession of the premises when this bill was brought, it should be dismissed, and the superior court is so advised.
In this opinion, the other judges, Waite and Hinman, concurred.
Bill dismissed.