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
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, 46 N.Y. 182, Sullivan v. Sullivan, 66 N.Y. 37, Braker v. Devereaux, 8 Paige 513), is a question which need not be considered. It may, for the purposes of the case, be assumed that Fuller's title is the same in legal effect as if the sixty-seven individual proprietors had conveyed to him their interest in the lot. If A, B, and C are tenants in common of a tract containing three hundred acres, all severally of equal value, and A and B join in conveying one hundred acres by metes and bounds to D, equity seems to require that upon partition D's title should be confirmed, and that one hundred acres of the land not conveyed should be assigned to C and fifty acres each to A and B. According to the plaintiff's doctrine, C may bring his petition for partition against A and B without making D a party or giving him notice, and if the committee happen to assign D's lot to C, D takes nothing, while both A and B take double what justly belongs to them; if they assign it to either A or B, D holds it by estoppel, the one to whom it is assigned gets nothing, and the other grantor twice the quantity to which he is equitably entitled. To avoid the expense of legal proceedings, they may divide the whole into three equal parts, of which the tract conveyed to D is one, and draw lots for them, as was done in this case. In that event D would have two chances in three to hold his land, while A and B would have an equal chance of losing the whole, and each a chance of obtaining twice what fairly belongs to him. They need not resort to legal proceedings, or to the ceremony of casting lots; they may make by agreement any division which the law warrants, and convey to each other accordingly. They may, by bargain between themselves, give to C in severalty the lot conveyed to D, and thus deprive him of the land. By the first named method of partition, D's title would depend upon the action of the committee; by the second, upon the chances of the lot; and by the third, upon the conscience of his grantors. It would not affect the legal aspect of the transaction if the three inherited the land, and C, at the time of their ancestor's decease and of the execution of the deed to D, were erroneously supposed to be dead. In that case, says Jackson, J., in Varnum v. Abbot, 12 Mass. 478, "it would be highly unjust and absurd that his return should wholly avoid such a conveyance made by the others in his absence. It is just that he should not be prejudiced by it. But there is no reason why the other cotenants should by this accident be enabled to avoid their own contract, and to reclaim the land which they had fairly sold for a valuable consideration."
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
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,38 N.H. 458; Peabody v. Minot, 24 Pick. 329. If a tenant in common conveys a distinct parcel, or his interest in such parcel, to a stranger, and afterwards conveys the remainder of the common lands or his interest therein to the same person or to his cotenants, or if his cotenants subsequently convey the parcel or their interest therein to the same or to another person or to their cotenant, the conveyances are not invalid. Varnum v. Abbot, 12 Mass. 477, 478; Crocker v. Tiffany, 9 R. I. 505; Stevens v. Norfolk, 46 Conn. 227; Reed v. Spicer, 27 Cal. 58; Dall v. Brown, 5 Cush. 289. The doctrine of these cases appears to rest upon the ground that the cotenants have expressly or by implication assented to and ratified the conveyances, or that, by reason of the situation of the property or nature of their estate therein, they cannot, upon partition, be prejudiced by them. So it has been held that a tenant's deed of a parcel or of his share in a parcel of the common land is effective in all cases to give the grantee the same right to the possession, use, and enjoyment of the property which the grantor had, until partition is made, upon the ground that the exercise of that right cannot injure the cotenants; the deed cannot be avoided except by proceedings for partition. Ballou v. Hale,47 N.H. 347; Rising v. Stannard, 17 Mass. 282; Stark v. Barrett, 15 Cal. 361
. Upon partition, a tenant is entitled to no particular part of the common property, but only to his due proportion in quantity and quality of the whole. If that can be given him out of the lands not conveyed by his cotenant, he has no just cause to complain of the conveyance. The general doctrine deducible from the numerous authorities on the subject is, that a tenant's deed of a specific part, or of his share of such part, of the common land is valid against his cotenants, except in so far as it may injuriously affect their right to a just division. The grantee takes a good title to all that is conveyed to him, unless upon partition it is found necessary to take the whole or a part of it in order to give the cotenants their equitable share of the property, in view not only of the value of the whole and of its several parts, but also of the convenience of the parties, and all other circumstances. Thompson v. Barber, 12 N.H. 563; Whitton v. Whitton, 38 N.H. 134; Bartlet v. Harlow, 12 Mass. 347; Nichols v. Smith, 22 Pick. 316; Brown v. Bailey, 1 Met. 257; Hartford Ore Co. v. Miller,41 Conn. 132; Soutter v. Porter, 27 Me. 405; Tilton v. Palmer, 31 Me. 486; Bigelow v. Littlefield, 52 Me. 24; Gates v. Salmon, 35 Cal. 576; Sutter v. San Francisco, 36 Cal. 112; Campau v. Godfrey, 18 Mich. 27; Butler v. Roys,25 Mich. 53; Robinett v. Preston, 2 Rob. (Va.) 273; McKee v. Barley, 11
Grat. 340; Cox v. McMullin, 14 Grat. 82; White v. Sayre, 2 Ohio 110; Treon v. Emerick, 6 Ohio 391; Dennison v. Foster, 9 Ohio 126; Barnhart v. Campbell, 50 Mo. 597; Story v. Johnson, 1 Younge Coll. (Exch.) 538; 2 ib. 586; 1 Sto. Eq. Jur., s. 656, c; St. Felix v. Rankin, 3 Edw. Ch. 323; Conklin v. Conklin, 3 Sandf. Ch. 64, and cases before cited.
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,22 N.H. 562; King v. Chancellor of Cambridge, 1 Str. 567. The rights of a grantee under a conveyance by a tenant in common of a specific part of the common land are not affected by judicial proceedings for a partition to which he is not a party and of which he has no notice. Still less can the cotenants be permitted to determine for themselves how far the deed shall be operative and how far inoperative, and by their determination conclude the interest of the grantee. The fact that his interest is liable to be defeated by a partition renders it all the more important to him that he have an opportunity to be heard. "He has," says Bell, J., in Whitton v. Whitton, supra, "an interest in the question whether the property shall be divided, and, if so, in what manner, precisely so much greater than an ordinary tenant in common as he is liable to have his interest assigned to another in partition, and his whole estate defeated without redress or compensation." There may, perhaps, be cases where no partition can be had by legal means unless such a grantee can be made a party, as, for example, if A and B are tenants in common of a farm, and A conveys his interest in the north half to C and in the south half to D. Gates v. Salmon, supra. Dicta may be found which give more or less countenance to the idea that a partition to which such a grantee is not a party is binding upon him. Where deeds or levies have been held invalid for the reason under consideration, it has been said that if, upon partition, the land conveyed or levied upon happens to fall to the share of the grantor or judgment debtor, the deed or levy is good by estoppel, with no intimation that the grantee or levying creditor should or could be made a party to the proceedings. French v. Lund, 1 N.H. 42; Bartlet v. Harlow, 12 Mass. 354; Varnum v. Abbot,12 Mass. 476; Brown v. Bailey, 1 Met. 257; Robinett v. Preston, 2 Rob. (Va.) 273; McKee v. Barley, 11 Grat. 340. In Soutter v. Porter, 27 Me. 405, it is suggested that a partition unjust to such grantee would not be confirmed by the court. When the question has come directly before the court for decision, it has been held in all the cases examined, with a single exception, that a grantee under a deed of the character in question is a proper and necessary party to proceedings for partition, and that unless he is made a party, his interests are not concluded or affected by the division. Whitton v. Whitton 38 N.H. 127; Salmon v. Gates, 35 Cal. 576; Sutter v. San Francisco, 36 Cal. 112; Wade v. Johnson, 5 Humph. 117; 1 Sto. Eq. Jur.,
s. 656, c; Story v. Johnson, 1 Younge Coll. (Exch.) 538; Campau v. Godfrey, 18 Mich. 27; Butler v. Roys, 25 Mich. 53; Bigelow v. Littlefield,52 Me. 24; Hinman v. Leavenworth, 2 Conn. 244, note. If he cannot himself maintain a petition for partition (Blossom v. Brightman, 21 Pick. 283, 285, Bartlet v. Harlow, Peabody v. Minot, Soutter v. Porter, supra), it may not follow that he cannot or that he must not be made a party defendant to such petition. In Morrill v. Foster, 25 N.H. 333, it was held that a petition for partition may be properly brought against any person interested in the property, the statute requiring the names of all the owners or persons interested to be stated. Rev. St., c. 206, s. 2; G. L., c. 247, s. 2. The statute of Vermont seems to be in this particular substantially the same. Slade's St. (1824), c. 19, s. 3; Gen. St. (1863), c. 45, s. 3.
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, 47 N.H. 347; Wait v. Richardson, 33 Vt. 190. The court of that state appears to have held the contrary doctrine. Broughton v. Howe,6 Vt. 266, decided in 1834, was a bill in equity to set aside a partition. One of three tenants in common conveyed to the plaintiff the north one third of the common land. Afterwards the two other cotenants, without the plaintiff's knowledge, procured the appointment by the probate court of a committee to make partition. The committee, also without the plaintiff's knowledge, assigned the north one third to one of said two cotenants. The court held that the plaintiff was not entitled to notice of the proceedings, and that the partition was valid.
No authority was cited, and at the time of the decision comparatively little touching the question was to be found in the books. In view of the later decisions and of the reasons upon which they rest, it may be doubted whether the courts of that state, if now called upon to consider the question, would sustain the authority of that case.
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, 20 N.H. 379; Watson v. Walker,23 N.H. 471; Holton v. Gleason, 26 N.H. 501; Ferguson v. Clifford,37 N.H. 86.
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, 3 Vt. 542, decided in 1831, was an action of ejectment commenced in 1821 to recover possession of lots 98 and 99 in Alburgh. In 1781 the state granted a charter of that township to a number of persons, reserving one seventieth for the use of a seminary or college. The proprietors not having made any division of the land under the charter, nor successfully asserted their claim to it, the whole town was afterwards settled and occupied by persons none of whom claimed under the original grantees. The university was founded in 1791, and took title to the one seventieth reserved in the charter for the use of a college. The defendant's testator, and those under whom he claimed, had been in possession of the demanded premises since 1785, claiming the same in their own right and adversely to all the world. It was held that the provision in the statute of limitations, exempting from its operation all lands granted, sequestered, or appropriated to public, pious, and charitable uses, extended to the case, but that, from the length of time the defendant had been in possession, the jury might and ought to presume in his favor either an antecedent grant, or a surrender of the charter under which the plaintiff claimed, or an extinguishment of any title which ever could have been derived under it. The court say, "A possession of lands for the period of fifteen years, where the statute of limitations will operate, is an absolute bar to any claim from the rightful owner. . . . In cases to which the statute does not apply, a long continued possession affords presumptive evidence of title. . . . An act of parliament, a grant from the crown, a deed, in fact anything, may be presumed from length of time where such act, grant, or deed could have been lawfully passed, made, or given. . . . In cases of prescription, this possession is conclusive as to the right.
Certain facts being found to exist, the right is confirmed as matter of law, and the possession is considered as conclusive of the right as if a deed or charter were actually produced. . . . There are certain other cases in which the presumption is not considered as altogether a legal inference, but must be made by the jury, and yet the court advise or direct the jury to make such presumption. . . . This second class of presumptions, where the jury are advised to make them, it will be found, applies to corporeal as well as incorporeal hereditaments. Thus, a grant of land may be presumed as well as of a fishery. . . . Where there has been a long continued possession which, in its origin, was or would have been unlawful unless there had been a grant, or if the origin of such possession cannot be accounted for without considering it either as unlawful or as lawful by virtue of a grant, the court will not infer that the possession was unlawful but direct the jury to presume such a grant, or anything which will confirm the possession." This doctrine is fully recognized and affirmed in the comparatively recent case of Victory v. Wells, 39 Vt. 488. In this case it appeared that by the charter of the town of Victory in 1781, the minister right was reserved from the grant, and when located was to remain inalienably appropriated for the uses and purposes for which it was assigned, and to be under the charge, direction, and disposal of the inhabitants of the township forever. The lot in question was drawn to this right. The defendant possessed and improved the lot as a homestead farm adversely to all the world, without any countervailing claim having been interposed from 1825 to 1858. It was held, that it was competent for the state to assume the control and disposal of the right reserved in the charter; that the legislature had full right and power to grant the lot thus reserved to any person it might deem fit; and that such possession by the defendant would fully warrant the jury in finding, as matter of fact, that he was holding under some valid grant from the state. These cases must be deemed decisive of the law in Vermont: whether it is the law in this state, or elsewhere, there is no occasion to inquire.
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,2 Vt. 14, Williams v. Goddard, 8 Vt. 492), no such conveyance can be presumed. But a lease as well as a conveyance in fee may be presumed. Sellick v. Starr, 5 Vt. 255. The town being specially authorized by the legislature could convey, or the legislature with the assent of the town could grant, the fee (Poultney v. Wells, 1 Aik. 180; White v. Fuller, 38 Vt. 201), and either may be presumed, if necessary to quiet Fuller's possession.
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.