62 N.H. 313 | N.H. | 1882
The rights of the parties in the property in question must be determined by the law of Vermont. The law of this or any other jurisdiction is immaterial, except in so far as it may tend to show what the law of that state is. The case may be considered as if the shares reserved for charitable and public uses were the property of individuals, so that until 1847 the town and sixty-seven natural persons were tenants in common of the third division. The plaintiff contends that a title acquired by adverse possession to the rights of one or more tenants in common in a specific parcel of the common land can have no greater effect than a title to the same interest conveyed by deed; that such a conveyance, though good against the grantor, is as against his cotenants void or voidable at their will, and in making partition may be disregarded; that, inasmuch as in the partition of 1847 lot 23 fell to the town, against which under the statute no right by possession *320 could be acquired, Fuller's title fails, although he was not a party to or notified of the making of the partition.
Whether in such a case title by possession stands upon precisely the same footing as title by deed (Wade v. Johnson, 5 Humph. 117, Florence v. Hopkins,
It has been held that a tenant's conveyance of a specific parcel of the common land, or his undivided part of such parcel, is, under *321
some circumstances, valid against his cotenants. It has been said, for example, that where the lands lie in different counties, or where a part of them has been assigned as dower, a tenant's deed, conveying his share of the land in one county, or his share in the reversion of dower, or in the residue of the land, is binding upon his cotenants. Martin v. Collester,
No one can be deprived of his rights or property by judicial process, without notice and an opportunity to make his defence. Brown v. Sceggell,
In Wade v. Johnson, above cited, the precise question was presented. It was ejectment brought in 1842 for a lot of 126 acres, part of a larger tract of which the plaintiff and her eleven co-heirs were tenants in common. The defendant claimed title by adverse possession, and the right of all the heirs except that of the plaintiff in the premises had, prior to 1841, become barred by the statute of limitations. In 1841, by judicial proceedings, to which the defendant was not a party, partition was had, and the land in question was assigned to the plaintiff. It was held that the plaintiff was nevertheless a tenant in common with the defendant, and entitled to recover only one undivided twelfth part of the premises. The court say, — "If at the end of 1840 the heirs, instead of the proceedings in the record of partition set forth, had each released his share to Mrs. Wade by deed, such share being then barred by the adverse possession and the statute, would she have been by the operation of such deeds in a better condition than [her grantors] if they had sued themselves? It will scarcely be so contended, and yet such deeds would have been entitled to all the legal effect which can be claimed for the act of the commissioners in the judicial proceeding for partition."
If such is the law of Vermont, Fuller's rights are not affected by the partition of 1847. He and the town are tenants in common of lot 23, and consequently this action cannot, upon the facts reported, be maintained. Ballou v. Hale,
Upon a trial of the cause the evidence may take such a course as to render a determination of the law of Vermont upon this point unnecessary, or if essential to the disposition of the case, it may be found as a fact at the trial term. Beach v. Workman,
If it turns out, as the case finds the evidence tended to show, that Fuller and those under whom he claims held possession of the lot adversely and without interruption from 1832 to 1870, the cases cited by the defendants appear to establish their position that, according to the law of Vermont, Fuller's title may be found good against the town, notwithstanding the exception of the statute in its favor, as well as against the other proprietors. University v. Reynolds,
The evidence tending to show that Fuller and those under whom he claims were in possession claiming the lot adversely and without interruption from 1832 to 1870, must be submitted to the jury with instructions in accordance with the doctrine of the foregoing cases. If the town had no power to convey the fee (Bush v. Whitney, 1 D. Chip. 369, Lamson v. New Haven,
The ruling in respect to the deed Harris to Cooper was correct. Other questions, which may not arise at the trial, are not considered.
Case discharged.
STANLEY, J., did not sit: the others concurred.