8 N.H. 93 | Superior Court of New Hampshire | 1835
delivered the opinion of the court.
In this case, Rebecca Brown has an estate in part of the land during her widowhood, and that estate is without doubt a freehold. Co. Litt. 42, a; 5 N. H. R. 492.
The question then is, whether any of those who have the remainder can maintain a petition for partition of that part during the continuance of the particular estate?
This court is authorized by statute, upon the application of any persons interested with others in any real estate, to cause partition thereof to be made. And whoever is interested with others in lands, whether that interest be a fee, a freehold, or a term of years, may maintain a petition for partition. Comyn’s Digest, “ Parcener,” C, 6; 1 Vesey & Beames 551, Baring vs. Nash; 7 Johns. C. R. 140, Wotten vs. Copeland; 15 Mass. R. 155, Mussey vs. Sanborn.
When one of the parties to the proceedings is only a tenant for life, or for years, the partition is limited, and binds only during the continuance of the particular estate. 1 Vesey & Beames 554; 7 Johns. C. R. 140. By the common law, a writ of partition lay only between parceners who were tenants of the freehold. 5. N. H. R. 217. And although the law on this subject has been altered in many respects, yet still no one can now maintain a petition for partition, unless he has a freehold or a term of years in the land. A petition for partition lies only for one who has a seizin in fact of the premises. If he has been disseized, it does not lie. 7 Mass. R. 475, Bonner vs. The Proprietors of the Kennebec Purchase.
And no case is to be found that gives the slightest countenance to the supposition that, where several are interested together in a remainder, after a freehold estate, any of them can maintain a petition for partition of the land in which they are so interested. 12 Pick. 374; 1 Vesey & Beames 551; Co. Litt. 167, a.
We are, therefore, of opinion that the report of the committee in this case, so far as respects the tract of land in a part of which Rebecca Brown has a freehold, must be rejected, — that part being improperly included in the division made by the committee.
