Masten v. . OlcottMasten v. . Olcott
Thе complaint in the partition suit described the premises sought to be partitioned, as being part of the lot “ known as the saw-mill lot,” and following this designation, courses and distances were given, and the description concludes,
“
which said prеmises are known as the old saw-mill lot.” The saw-mill lot, as known and occupied at the time, was separated from the lot on the south, occupied by the plaintiff, by a heavy stone wall, erected in 1820. The premises in controversy comрrise about an acre of land in a triangular form, south of, and adjacent to the stone wall, which has been inclosed and occupied as part of the plaintiff’s lot by him and his predecessors in title from about the year 1806. In that year, Jоhannas Hasten conveyed to Jacob Hasten and others, a lot described in the deed by the same description contained in the complaint in partition, and what was then known as the saw-mill lot, embraced the premises now in controversy. But soon after that conveyance an arrangement was entered into between the Hastens, and the owner of the lot next south of the saw-mill lot, to “ square the line ” between the lots, by which the line was located where the stоne wall was subsequently built. Before the erection of the stone wall, and soon after the arrangement referred to, a wood fence was bnilt on the same line by the owner of the plaintiff’s lot. From that time to the commencement оf the partition proceedings in 1873, a period of more than sixty years, the respective lots had been occupied according to. the line fixed in 1806, and when this action was commenced the stone wall had been for more thаn fifty years the division fence between the lots. The plaintiff has an unquestionable legal title to the premises in controversy unless he
*157
is concluded from asserting such title by the judgment and sale in the partition action in which he was made a pаrty defendant. It is claimed on the part of the present defendant that as the land in controversy is included within the lines mentioned in the description in the partition proceedings, and was in fact originally a part of the saw-mill lot, the plaintiff if he claimed title thereto was bound to set up his title in the partition action and having failed to do so, the judgment and sale therein is conclusive against any subsequent assertion of such title. This would be true on the assumption that it was adjudged in that aсtion that the premises alleged therein to have been owned in common by the parties, and of which partition was decreed, embraced the part of the original saw-mill lot, now in controversy. The parties to a partition suit аre bound by the judgment therein whether their interests were rightly stated or not, and an adjudication that they were tenants in common of the land adjudged to be partitioned concludes a party to the action, served with process, although hе did not appear, and although his title to a part of the land partitioned was in severalty. This was a fact he was bound to put in issue, and have determined on the trial.
(Jordan
v.
Van Epps,
85 N. Y.
427; Cook
v.
Allen,
*159 The defendants claim that an equitable estoppel has arisen against the plaintiff, by reason of acts and conduct before, at, and after the sale in partition; The claim cannot, we think, be supported. The interview with the attorney, when the plaintiff was served with the complaint in the pаrtition action, was casual, and what was said, so far as appears, was never communicated by the attorney to any of the other parties, nor did it influence his action. The bidding off of the property on the sale by the plaintiff for one of the other parties to the action, was not an admission that the premises sold embraced the land now in question. The act was commensurate only with the thing to which it related, that is, a sale of the land included in the descriptiоn, and this, as we have seen, did not embrace any part of the plaintiff’s lot. The surveys made after the sale, when the plaintiff was present were made with a view of ascertaining the location of the premises according to thе courses and distances in the deed, and his pointing out the places where the old monuments were located did not in any way prejudice his legal rights.
The remaining question arises upon the claim of the defendants that the justice’s judgment rendеred in December, 1876, in an action for trespass brought by the defendant John Olcott, against the plaintiff, in which Olcott recovered $5 damages, is a conclusive adjudication against the title now claimed. There are several answers to this point. The action in the justice’s court was for the entry of the defendants’ cattle upon the land in question, trampling the plaintiff’s crops, etc. The complaint alleged possession simply of the
locus in quo
in the then plaintiff and not title. The answеr was a denial, and possession in the then defendant for twenty years. There was no plea of title, and the evidence on the trial related solely to the point of actual possession at the time of the alleged trespаss, and no evidence was given of twenty years possession by the defendant. Possession was the only point litigated, and the question of legal title was not in any way brought into controversy. It is very plain that the judgment did not conclude on the point of title, or in any way
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affect it. The question of title was not tried before the justice, and could not be, except perhaps where a plaintiff in an action of trespass in a justice’s court should be permitted without objection on thе part of the defendant to give evidence of title as the ground of and to support his allegation of possession the defendant not disputing such title, and judgment should pass in favor of the plaintiff, a point, however, as to which we express no opinion. (See
Boyer
v.
Schofield, 2
Keyes, 628;
Koon
v.
Mazuzan,
We think the judgment below is right, and it should be affirmed.
Judgment affirmed.