Graves v. . BarrettGraves v. . Barrett
Samuel Barrett in 1867 made a deed for a tract of land to the “heirs of John A. Barnett.” Said John A. Barrett is the son of the grantor, and is still living. By sec. 1329 of The Code, this deed, which would have beеn void at common law, nam nemo haeres viveniis, is construed to be a limitation to the children of John A. Barrett. At thе time of the execution of the conveyance he had two children, John M. and Jеsse, and there are two born since, Charles and Bertha. John M. mortgaged his “one-fourth undividеd interest” in said tract, the mortgage was foreclosed, and the plaintiff, who becаme the purchaser’, filed a petition in partition before the Clerk, Jesse and Chаrles Barrett and their sister Bertha, with her husband, being defendants. The answer denies the allegаtions in the complaint of plaintiff being tenant in common with them of said land, but does not аver sole seizin■ in themselves; on the contrary, it admits (by not denying) that each of defendants own, as аlleged in the second paragraph of the complaint, an undivided one-fourth interest *269 therein, and as the decree awards them that, the defendants have no cause to complain. Upon the above state of facts in proof the Court instructed the jury that if they believed the evidence which was uncontroverted, to respond to' the issues that plaintiff was co-tenant with defendants, and entitled to an undivided one-fourth. The defendants, who excepted and appealed, contend that the рlaintiff was not entitled to the instruction given, because the plaintiff has not shown title out оf the State. They contend that tire denials in the answer converted this into an action of ejectment, and that two of the defendants having been born since the deed of Samuel A. Barrett to the heirs of John A. Barrett, they do not take thereunder, and hencе the “rule of practice” does not apply that where the plaintiff and defendant claim under a common source of title the plaintiff need not prove аny title anterior to that.
But in a petition for partition, title is not in issue, unless the defendants put it in issue by pleading “sole seizin.” That was not done in this case. The Code, sec. 1892, does not require averment of title as in ejectment, but simply an allegation of seizin and possession аs tenants in common, and the seizin and possession of one are that of all. The аllegations in the complaint and the denials in the answer raised only the ordinary issues in рartition, (1) whether plaintiff and defendants were co-tenants, and (2) what interest the plаintiff possessed in said land. These issues were properly framed upon the pleadings, were submitted without exception, and upon the evidence the Court could not charge otherwise than it did.
If the defendants Charles and Bertha, by reason of their birth since the date of the deed, have no- interest thereunder, they had no reason to oрpose partition, and if they have an independent title-, it was trifling with the Court not to plead
*270
sole seizin,
and put it in issue. If the defendants bad pleaded
sole seizin
the plaintiff would have been put on notice that the title to the land was in issue; аnd an issue should have been framed in accordance therewith.
Alexander v. Gibbon,
The defendants further demur
ore lenm
in this Court that the land is not sufficiently described in the complaint. This could be done if the defect were such as rendered this a defective cause of action. But it is in fact a defective statement of a good cause of action and therefore it was waived by the answer which shows that the defendants understood perfеctly of what tract of land partition was asked.
Godwin v. Early,
Affirmed.