12 Mass. 347 | Mass. | 1815
delivered the opinion of the Court.
By our statute of executions,
It is contended by the counsel for the petitioner, that the officer and the appraisers, in pursuance, of this statute, may set off all the debtor’s interest and estate in a part of the land held in common ; and that, although a levy on a part of his interest in the whole land would be good, yet they are not confined to this mode.
* On the other side, it is contended that the statute [*350] speaks of levying, in such a case, on part of the estate, and not on part of the land; and that any construction, contrary to the plain import of the words, would be highly injurious to the other co-tenants. To this it may be added, that, in the following section of the same statute, it is said, that, “ when the real estate extended
This view of the language used by the legislature would lead us to adopt the construction of the respondent’s counsel; and we are confirmed in this opinion by a more general view of the object of the statute, and of the consequences that would result from a different construction.
The levy of an execution upon real estate is a kind of statute conveyance from the debtor to the creditor. “It shall make as good a title to the creditor, his heirs, and assigns, as the debtor had therein.” [Section 2.] It was not the intention of the legislature to allow estates to be created or transferred in any new manner, altogether repugnant to the principles of the common law : but to put a conveyance under this statute on as good a footing as if made freely by the debtor. And it is generally true, that no estate or interest in land can be transferred by such a levy, which the debtor might not have conveyed, by any suitable instrument, for a valuable consideration.
We are, then, to consider whether Levi Harlow, the debtor, could have conveyed by deed to the petitioner, by metes and bounds, twenty acres, parcel of the sixty acres which he held in common with the respondent, so as to entitle the petitioner to maintain a writ or petition for partition of the twenty acres against the respondent.
[*351] * There is very little concerning this question to be found in the books. Among the numerous examples in Co. Lit. and other books, of the severance of a joint-tenancy, we find many instances of a conveyance by one joint-tenant of a part of his estate, but not one unequivocal case of a conveyance of his estate in a part of the land. There is, indeed, one in Co. Lit. 193, which may possibly be so understood. He says, “ If two joint-tenants be of twenty acres, and one maketh a feoffment of his part in eighteen acres, the other cannot release ” (namely to his companion) “ his entire part, but only in two acres ; for that the jointure is severed for the residue.” Lord Coke cites no case for this opinion ; so that we have no opportunity to ascertain, by a recurrence to the facts, whether he contemplated a conveyance of the co-tenant’s part in eighteen specific acres by metes and bounds, or in eighteen twentieths of the land. If the latter be understood, it will perfectly well comport with the context ; and will illustrate the general doctrine for which the case is introduced, as well as if it be intended of a
There is one other case on this point, which is transcribed by Viner
On the other hand, it has been decided by this Court, in the case of Porter vs. Hill,
In 2 Co. 68,. and Cro. Eliz. 803, it is laid down as a general principle, that one joint-tenant cannot prejudice his companion in
If it be said that this is a necessary incident to his estate, which he must be supposed to have contemplated when he took it ; it may be more justly said in answer, that the restraint contended for, by which one is prevented from conveying distinct portions of the land, is a necessary incident to the estate ; and that, as each was originally entitled to one moiety, for quantity and quality, to be assigned to him by commissioners or by a jury in due course of law, neither of them shall, by his own act, control the commissioners or jurors, and prevent their assigning to his companion such portion, and in such manner, as they, in the exercise of a sound discretion, would have thought just and proper. As the co-tenant had not originally any such right or authority in himself to control the proceedings on a partition, so neither can he transfer such a right to any assignees or grantees of his share.
It may be added, that, if one co-tenant has this right, the others, of course, have the same. Suppose, then, that three or more persons hold in common a township of wild land, and that each of them, without regard to the others, should divide the whole into such lots as he thought proper, and sell his share in each lot to different purchasers. As the lines of the lots, thus arbitrarily designated by the different owners, would, perhaps, in no instance coincide, [*354] it is easy to see * that a partition among the several grantees would become extremely difficult and inconvenient; and, if we imagine a like case, with a greater number of original
Whilst the right of one co-tenant to alienate any distinct portion of the land might, as we have seen, be extremely injurious to his companion, the restraint on such alienations can seldom, if ever, prejudice the grantor. Suppose one of two co-tenants of forty acres wishes to sell ten acres, he may convey one undivided fourth part of the whole, and his grantee may, by legal process, have his share set off to him. This process of partition would be equally necessary, if the conveyance had been of a moiety of twenty acres taken out of the forty. There is, therefore, no additional trouble or expense ; and the only difference is, that the grantor is prevented from selecting any particular portion of the whole tract, out of which his grantee shall-take his share ; which is a right he could never claim or exercise in his own behalf, while he continued the owner of the whole moiety.
We are, therefore, satisfied that the petitioner cannot have partition, as prayed for in this case.
It does not, however, follow, that the levy of his execution is wholly void and fruitless.
The verdict returned in this case is to be set aside, and a verdict entered for the respondent, upon which judgment is to be rendered.
Stat. 1783, c.58.
Fifth Reading on Fines in Hawkins's Collection of Coke's Law Tracts, 241. — See also Fitz. N. B. 9 K.
Vin. Abr., Tit. Partition, S, Pl. 15.
9 Mass. Rep. 34.
See Tooker’s case, 10 Co. 68.
Varnum vs. Abbot et al., post, 474. — Baldwin vs. Whiting, 13 Mass. Rep. 57. — Cutting et ux. vs. Rockwood, 2 Pick. 443. — Pond vs. Pond, 14 Mass. Rep. 403.
Vide Varnum vs. Abbot, post, 474. — Baldwin vs. Whiting, 13 Mass. Rep. 57. - Pond vs. Pond, 14 Mass. Rep. 403. —Atkins vs. Bean et al., 14 Mass. Rep. 404. — Cutting et ux. vs Rockwood, 2 Pick. 443.