The plaintiff claims title by deed from Charles Griswold, the administrator de bonis non, with the will annexed, of Dyar Throop, deceased. The Rev. Benjamin Throop made his last will, devising to his sons, Dyar and Benjamin, a tract of land, of which the premises demanded is part, in manner following: “ To my two sons, Dyar and Benjamin, I give and bequeath to them, their heirs and assigns, that part of my farm which lies Easterly of Wolf-swamp brook, to be equally divided between them for quantity and quality, and that my son Dyar have the part next the brook.” The above tract contained thirty-seven acres, and the aforesaid administrator, duly authorised by the court of probate, gave to the plaintiff a deed of seventeen acres thereof, by metes and bounds, of that part of said land, which lies next adjoining the brook aforesaid. The plaintiff insists, that Dyar Throon, under the aforesaid devise, took the land described in the above deed, as an estate in severalty ; while the defendant urges, that the said Dyar and Benjamin had title to the aforesaid land, East of the brook, as tenants in common. The court charged the jury in conformity with the defendant's claim ; and that if the said deed embraced any quantity of said common estate, less than the whole, by metes and bounds, such conveyance in law was null and void.
Whether the charge of the court was correct, depends on the answer which the law gives to two questions, namely ; was the estate in question devised in common to Dyar and Benjamin ; and if so, was the deed invalid.
1. Tenants in common are such as hold by unity of possession, because none knoweth his own severalty, and they occupy promiscuously. Co. Litt. sec. 292, 2 Bla. Comm. 191. The infallible criterion of this species of estate, is, that no one knoweth his own severalty ; and hence the possession of the estate necessarily is in common until a legal partition be made. But of an estate in severalty the criterion is, that a man knows, what he has the exclusive right of possessing ; and his possession is sole, because no person has right to occupy with him.—If an estate is given to a plurality of persons, without any restrictive, exclusive and explanatory words ; from the nature of the case, they are tenants in common. 2 Bla. Comm. 192. 180. If the grant superadds, that the property " is to be equally divided” between them, the estate is held in common, because these words are inapplicable to a several estate. 2 Bla. Comm.
2. The deed of this common estate, by metes and bounds, the one tenant in common thus attempting to make a partition of the property, without any co-operation of the other, is, undoubtedly, void. The point is at rest, and not to be questioned. Hinman v. Leavenworth, 2 Conn. Rep 244. n. Starr v. Leavitt. 2 Conn Rep. 243. Mitchell v. Hazen, 4 Conn. Rep. 495; Bartlett v. Harlow. 12 Mass. Rep. 348. Porter v. Hill, 9 Mass. Rep. 34.
The determination of the Judge below was correct ; and no new trial is to be granted.
New trial not to be granted.