135 Mass. 317 | Mass. | 1883
The plaintiff, a tenant in common of land, seeks partition thereof in equity. The plaintiff’s husband built a house upon a part of the land, and the plaintiff seeks by this bill to have that part assigned to her, without including the value of the building in the partition. The Gen. Sts. c. 136, § 1, which reenacted earlier statutes, — Rev. Sts. c. 103; Sts. 1783, c. 41; 1785, c. 62, § 2;—provided that “persons holding lands as joint tenants, coparceners, or tenants in common, may be compelled to divide the same, either by writ of partition at the common law or in the manner provided in this chapter; ” and particular and minute provisions are made for such partition. No provision was made for compensation for betterments or improvements made by a cotenant; and it was held in Marshall v. Crehore, 13 Met. 462, that, although a tenant in common who was disseised could maintain the statutory process for partition, the respondent could have no remedy for improvements he had made on the premises to be divided. Soon after that decision, the St. of 1850, c. 278, was passed, which provided that when, “in any writ, or other process of partition,” the respondent or defendant denied the right of the petitioner or plaintiff, and claimed the estate himself, and had held the same under a title which he believed to be good, he should be entitled to compensation for buildings or improvements. The plaintiff does not come within the provisions of this statute, (which were reenacted in the Gen. Sts. c. 136, § 46,) because he cannot deny the defendant’s title. Chandler v. Simmons, 105 Mass. 412.
As the house was erected without the consent or knowledge of the defendant, it must be treated as part of the land in a
The statute also excludes the right which the plaintiff claims. Its plain intendment is, that partition ■ shall be made of land without regard to the state of the account between the cotenants for improvements or erections upon it, and that a part owner may have his part of the land set off to him, although he may not have paid as much for it in proportion as his cotenant paid, and although he may be indebted to his cotenant for improvements upon the land. Any right to a partition, not according to the interest of the tenants in the land, but according to the improvements made upon the common property by them, is excluded. Bill dismissed.