6 N.H. 109 | Superior Court of New Hampshire | 1833
delivered the opinion of the court.
It is said, in this -case, on behalf of the respondents, that this petition can riot be sustained, because the petitioners have not actual possession, and a decision of the supreme court of Massachusetts is cited to sustain the proposition.
But it is held, in Massachusetts, that it is only where there is an actual ouster, or an exclusive pernancy of the profits, against the will of the others, that partition does not lie. And, even where there is an actual ouster, if the right of entry be not lost, an entry may be made, and then a petition for partition may be sustained, 14 Mass. Rep. 434; Barnard v. Pope; 8 Pick. 376, Liscomb v. Root.
In this case it does not appear that the petitioners have ever been actually ousted, and among cotenants, the possession of one, is the possession of all, until an actual ouster is shown. There is, then, no legal foundation for this objection to the petition.
It js not doubted that John Miller and William Miller took as joint tenants under the deed. But the tenancy was changed, without doubt, by the statute of 1809, if the legislature had the power to change it.
it is said, on behalf of the respondents, that to give to the statute of 1807 the effect of changing a joint tenancy, created by a deed, then in existence, would be to give it the effect of a retrospective law, which is prohibited by the constitution.
We had occasion to examine the clause in the constitution which denounces retrospective laws, in the case of Woart v. Winnick, 3 N. H. Rep. 473; and we came to the conclusion that it was intended to prohibit the making of any law, prescribing new rules for the decision of existing causes, so as to change the ground of the action
Is, then, the statute of 1809, in relation to the deed in this case, a retrospective law, for the decision of civil causes, within the meaning of the constitution ?
We think it is not. In changing joint tenancies, created by deeds then existing, into tenancies in common, it furnished no new rule to govern the decision of any action then pending or of any cause of action. The statute, applied to the deed, in this case, would take away no vested right. Neither John nor William had any vested interest in the moiety of the other. The acquisition of the whole estate by survivorship, would have been in either nothing more than a hope or expectation, like the expectation of a child to inherit the estate of a parent. The statute, thus applied,operates upon an existing estate, but not retrospectively within the meaning of the constitution. It can no more be considered a retrospective law, than a statute altering the descent of intestate estates. It neither gives, nor takes away, any right or interest.
The application of the statute to a case where one joint tenant had actually taken the land by survivorship, at the time the statute was passed, and which is a case excepted from the operation of the statute, would be an instance of the very thing, which the constitution intended to prohibit. Thus applied, it would take away a vested right, make a new rule for the decision of existing cases, and would be in its nature an exercise of judicial power.
Rut it is further said, that this statute, applied to the deed in this case, is a law, impairing the obligations of a contract, within the meaning of the constitution of the United States.
We do not perceive this. The statute only changes a joint tenancy into a tenancy in common. The contract, which created the estate,is not altered or impaired. The
Tne estate, created fcv the deed m tots case, mas r-een co’npu. erh in the armunent. to r. grant to two for Lie. remainder to the ⅞ irvivor ami hi- hems. Lot mere is a most materi.d difference in ti e two cases, ’ihere, the estate vm-ula Le imisited to the servitor by the express contract, Hem. there was no m-atrart in the deed, either express or implied, that the joint tenancy should continue, and the land go to the su: vivor and his iieirs. If. in that case the legislature could not enact that the land should tro. upon tne decease of one. to his hems and *o iue s'irvi’-or, without impairing the obligations of the con!;act — '*i:l it would r.ot prove that the io.nt tenancy, created by the deed in this case, could r.ot be changed into a tenancy in common, withe ’it impairing some contract iri that rce«.
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