It is truе that the appellant James Morton, as he asserts in his demurrer to the amended complaint, has no interest in the real estate described therein which could be partitioned. His recorded encumbrance was by its terms fastened only upon the moiety of the real estate owned by the defendant Clarа L. B. Morton, and his interest in the property is confined within her moiety and is identical with her individual interest. She continued as cotenant to be the owner of her interеsts, and the other cotenants’ rights to a partition of the real estate were not disturbed by James Morton’s encumbrance. He was not a necessary рarty to an action for partition merely, although it was better for all parties that he should be made a codefendant, because in him and in the othеr defendant together lies the whole title to an undivided part of the property which is the subject of the action.
Johnson
v.
Olmsted,
But evidently the principal purposе of this action is not a partition of the real estate, but its sale and the distribution of the money arising therefrom, by a subsequent order of the court, among all рersons interested in the estate, in proportion to their interests. General Statutes, §§ 6073, 6077. In proceedings toward such objects, James Morton may have аn interest which will be considerably affected. By recording his assignment of the option in the land records of the town, he has caused it to appear that he is one of the persons interested in the proceeds of the sale,
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which, will take the place of the real estate subject to his lien, and whiсh it will be the duty of the court by its supplemental judgment to distribute as the law requires. Since he thus formally pretends that he is concerned in the subject-matter of the action, he is a necessary party to enable the court to adjust the rights and duties of all persons interested and make a final determination of the mаtter in controversy.
Nichols
v.
Nichols,
His demurrer is not broad enough to include all his interests which are involved in the cause of action set out in the complaint and which will be аffected by the judgment which orders a sale of the real estate in which both defendants claim interests. Therefore the demurrer was properly overrulеd; and upon the failure of the defendant James Morton to plead over, the judgments were legally rendered against both him and the other defendant.
It may bе added that it is difficult to see how James Morton can be aggrieved by these judgments. He has, as he asserts, no interest that could be affected by a partitiоn of this real estate; and he does not claim and it does not appear that any interest he has therein can be affected by the sale of thе real estate in any way which will cause him any legal injury. All his rights which the law recognizes will be transferred from the land to the money arising from the sale. Neither he nor thе defendant cotenant under whom he claims can expect anything more. It is not a legal objection to a sale that it will change the nature or diminish thе value of the interest of any party.
Johnson
v.
Olmsted,
The defendant Clara L. B. Morton assigns as reasons for her appeal certain rulings on evidence. One of the plaintiffs, who was the only witness during the trial, testified that the plaintiffs were owners of an undivided five sixths of the real estate described in the complaint, and produced their deeds, which were laid in evidence. On cross-examination he testified that since they had acquired their title by these deeds, they had not conveyed the property to any one, but that two years before they had given an option to sell their interest. On redirect examination he stated that this option had been released in writing and given up during the trial, and that no other person then had any option, claim or interest in this property. Counsel for the plaintiffs also stated to the cоurt that all rights and claims under the option had been released in writing, and he was authorized to make that statement by the persons who had held the option; аnd he offered to show the release to the court, but did not think it necessary to put it in evidence. Thereafter, under further cross-examination, the same witness was asked if he was “sure” that “the paper” he called an option was an option; to which objection was sustained and exception notеd. ,He was then asked if he would produce the original paper called an option; and this question was objected to and excluded, and an exсeption noted. The witness was next asked if he had any release of the option, and he answered that he had. Thereupon he was asked if he would produce it; and this question was excluded and exception *520 taken. The counsel for the defendants then stated that in view of these rulings by the court, they had no evidence to offer. It did not appear that the so-called option had been recorded in the land records of the town.
The only allegatiоn in the complaint which the plaintiffs were required to prove was that they were the owners of an undivided five sixths of the real estate to be partitionеd or sold. As to that, they had produced evidence that the record title was in them at the time of the trial. The testimony that two years before that time they had given an option to sell their interest in the property was off-set by the equally credible and forcible testimony that the option had been released and given up, and the court might reasonably consider it of no importance. Since it did not appear that it had been recorded in the land records, it could have no weight as evidence of the title of a stranger to an interest in the land adverse to that of the plaintiffs.
Whiting
v.
Gaylord,
It was within the discretion of the cоurt to exclude the question whether the witness was “sure ” that “the paper ” which had been released was an option, since the witness had already testifiеd repeatedly that it was. If the defendants desired to produce evidence to contradict the testimony concerning the character and effect of these papers, it was their privilege to do so; and it was easily within their power to summon to the stand the witness then in court, who admitted that he had these papers in his possession, and compel him to produce them to be offered as the defendants’ evidence. Their neglect to take this course cannot be explained or excused by the rulings of the court; because these rulings were evidently made upon the assumption that these pаpers were what the witness had said they were, and therefore that the plaintiffs
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were not bound to produce them. After the plaintiffs had introduced their evidence that the record title was in them, they must prevail in their action unless the defendants should show some reason to the contrary.
Joyce
v.
Dyer,
There is no error.