215 Mass. 65 | Mass. | 1913
This is a petition for partition of land on Park Street in Lynn. The question at issue is the shares to which the several owners are entitled. The material facts are that in 1899
The levy of the two executions against Sarah E. Newhall was not upon the share held by her as tenant in common in the entire real estate inherited by her from her father. It did not follow the provisions of R. L. c. 178, §§ 13, 14. As has been pointed out, each was a levy upon all her title in only one of the several parcels held as tenants in common, which one was described by metes and bounds. The levy and sale upon execution
The case at bar is governed by Brown v. Bailey, 1 Met. 254, in which at page 257 Chief Justice Shaw said, respecting facts precisely similar to those presented in the case at bar, “such conveyance or levy, therefore, is good against the grantor and all claiming under him. If then the other cotenants release, or if upon a partition, their full shares are set off in other parts of the common estate, and the part conveyed or levied on is assigned to the party whose share has thus been conveyed or levied on by metes and bounds, such partition operates by way of estoppel and release, because no one has any longer a right to contest its validity. ” The principle that a conveyance by metes and bounds, whether by personal deed or statutory transfer, by one tenant in common of a portion of the common estate, although of no effect against the consent of his cotenants, operates after partition by way of estoppel to transfer the title, has been affirmed repeatedly. DeWitt v. Harvey, 4 Gray, 486, 491. Barnes v. Boardman, 157 Mass. 479. Barnes v. Lynch, 151 Mass. 510, 512. Frost v. Courtis, 172 Mass. 401, 404.
The application of this principle results in something like a wager or chance. The grantee gets nothing unless on partition the share of the grantor should happen to include the parcel described by metes and bounds in the deed. The grantor loses by estoppel and release all his interest in the parcel so described if it should happen to be set off to him.
By the partition, the interest of Sarah E. Newhall in the entire estate inherited by her both from her father and her brother, consisting of several parcels, was converted into a one fourth interest in the Park Street property. Of this one fourth she acquired six out of seven parts by inheritance of the one seventh of her father’s estate. This share, or six twenty-eighths, is held by the first levy of execution, which was made before the death
Interlocutory judgment affirmed.