105 Mass. 412 | Mass. | 1870
This case presents a narrow question of the construction of section 46 of chapter 136 of the General Statutes, which is as follows : “If the plaintiff or petitioner recovers judgment in any suit or other process of partition in which it appears by the pleadings that the defendant or respondent denies the right
The petitioner claims that, under the last clause of this section, every plaintiff in a petition of partition may recover such damages for rents, profits and waste as he has sustained; but such, we think, is not its true construction.
This and the following section are a reenactment of the St. of 1850, o. 278, without any material change. The St. of 1850 was passed soon after the decision of the case of Marshall v. Crehore, 13 Met. 462, in which it was held that a respondent in a process of partition, who has entered under a title which he believed to be good, had no remedy for his improvements. The object of the statute was to remedy this injustice, and by the obvious construction of its language it is applicable only to cases in which the respondent denies the petitioner’s title, and in which it appears that he held under a title which he believed to be good. In all othu cases the parties are left to their remedies, as they existed prior to the act. In the provision that “ in like manner he shall be liable for the plaintiff or petitioner’s share of the rents, profits and ether damages,” the pronoun “ he,” by the obvious, if not necessary, construction, refers to the respondent before described. It would be a forced and unnatural construction, to give to this provision the same effect as if it had been an independent provision, that every respondent in a process of partition should be liable for the petitioner’s share of the rents, profits and other damages.
In the case at bar, the respondent did not deny the right and title of the petitioner to any part of the premises, and therefore the ruling that the case was not within the provisions of the statute was correct. Exceptions overruled.