Nichols v. Nichols, 28 Vt. 228

Nichols v. Nichols

28 Vt. 228 | Vt. | 1856

The opinion of the court was delivered by

Isham, J.

This is a petition for partition. The Comp. Stat. 300, § 1-2, provides, that “ any person having or holding real estate with others, as joint tenants, tenants in common, or coparceners, may have partition thereof, in the manner therein provided.” The petitioners are required to state in them petition, the title by which they hold the land, the names of the several owners, as.far as known, and give a particular description of the premises. The title of the petitioners may be denied by plea, and an issue may be formed, so that the matter in controversy may be tried as in civil suits. In this case, the title of the petitioners to the land, as tenants in common, was denied by the plea. It became necessary, therefore, on the trial of the case before the jury, for the plaintiffs to establish their relation as tenants in common in order to entitle themselves to a partition of the premises.

*231It appears, from the case, that on the 14th of September, 1850, Dewey Nichols conveyed to the petitioners, an undivided half of the farm, of which the premises in question are parcel; and that the other undivided half was, by a separate conveyance, conveyed to the petitionees. But, in the conveyance of the undivided moiety to the petitioners, Dewey Nichols reserved to himself the use and occupancy of that portion of the farm during his own life, and that of his wife and daughter; and it appears that Dewey Nichols and his daughter are still living. The effect of those several conveyances was to vest in the petitionees a title in fee, as tenants in common to one half of the farm, with the right of its present and immediate possession; and to give to Dewey Nichols a life estate in the other half, with the right of possession during the lives of the persons for whose benefit that reservation was made. As between Dewey Nichols and the petitionees, a partition could probably be had. In 2 Lilly’s Abg. 357, II., it is said, that “partition may be brought by tenant in fee of one moiety, against tenant for life of the other moietyLutw 1018. Those parties have not a unity of title, but they have a unity of possession, and, therefore, are strictly tenants in common. The petitioners, under their deed, have no right to the possession, use or occupancy of the moiety conveyed to them, until after the determination of the particular estate which the grantor reserved to himself. They have neither the possession, nor the right of possession to any portion of the premises, during the life of either of the persons for whose benefit that reservation was made. Under these circumstances, we think that the charge of the court to the jury was correct, “that the deed of Dewey Nichols to the petitioners, of September 14, 1850, did not convey to them such a title, as would enable them to sustain a petition for partition, during the lifetime of Dewey Nichols.” During the life of Dewey Nichols, the petitioners cannot be regarded as having a present estate, as tenants in common with the petitionees. There is no unity of possession between them, nor can there be, so long as the petitioners have no right of possession. That relation may exist on the decease of Dewey Nichols, and those for whom that reservation was made, but not until then.

It may not be necessary, in all cases, that a party have the actual occupation of the premises to entitle him to a partition, for *232where the possession is not adverse, a constructive possession follows the legal title; Hawley v. Soper, 18 Vt. 320. But the petitioners must show a legal title to the land, as tenants' in common with the petitionees, and the right of immediate possession at the time of presenting the petition; so that actual occupancy of the premises in severalty, can be had by the tenants, immediately on partition being made. In 4 Kent’s Com. 380 — note, it is said, that “ it was the ancient doctrine, under the statutes of Henry VIII, “ that no persons could be made parties to a writ of partition, or “ be affected by it, but such as were entitled to the present posses- “ sion of their share in severalty.” In the case of Burhans v. Burhans, 2 Barb. ch. 398, it was held’that “ a party applying for a “ partition of lands, must not only have a present estate in the “ premises, as a joint tenant, or tenant in common, but he must “ have also the actual or constructive irossession of his undivided “share or interest in the premises.” In Brownell v. Brownell, 19 Wend. 367, it was held that “proceedings in partition, under the “ statute, can be instituted only by a party who has an estate “ entitling him to immediate possession.” The same rule was recognized in New Jersey, in Stevens v. Enders, 1 Green 271, and in Connecticut, in the case of Culver v. Culver, 2 Root 278, where a widow was seized of a life estate, with a remainder to those persons who were parties to the proceeding, for partition. The court observed, that “ it will be time enough for them to have partition “ of the lands, when they shall have the possession and title.” In Packard v. Packard, 16 Pick. 191, the same rule was recognized, that a petition for partition could not be sustained when the parties had only a reversionary interest, and not a vested estate in possession. Barnard, v. Pope, 14 Mass. 434. Hodgkinson et al, 12 Pick. 374. The same doctrine is held in Pennsylvania, Zeigler v. Grim, 6 Watts 106, and in the case of Brown v. Brown, 8 N. H. 93, where it was held that “ a petition for partition cannot be main- “ tained by one who has only an interest in a reversion or remain- “ der, after a life estate.” The reason upon which that doctrine is founded is obvious. In 2 Lilly’s Abg. 356, E., the rule is given, that “ a partition of lands ought to be made according to the quality “ and the true value of the lands, and not according to the quantity “ or number of acres.” If a just and equitable partition of these *233premises were now to be made, that partition may be unjust and unequal, when, upon the decease of Dewey Nichols, these parties have a vested estate in possession. For that reason, we think, this petition cannot now be sustained.

The evidence offered in relation to the deed of March 16, 1853, was, manifestly, properly received. That deed, without that evidence, would have given to the petitioners a present estate in fee, as tenants in common with the petitionees. The effect of the evidence offered, was to defeat the title of the petitioners under it. The title of the petitioners to this land, was then left to stand on the deed of Dewey Nichols, of' September 14, 1850, which we have considered as not giving to the petitioners that title and right of possession, which entitles them to a partition of -these premises.

"We are satisfied, also, that the court were correct in deciding that, under our statute, this case could not be reviewed. The right of review, with few exceptions, is given by statute in all civil causes. The words “ civil causes” have reference only to those suits or actions, which are commenced and prosecuted according to the course of the common law. That was obviously the meaning of the court in the case of Borden v. Brown, 7 Mass. 93, in which they observed, that “ reviews are provided for only when the original action is commenced by writ.” In that case a review was dénied on a petition for partition of lands. At common law, no proceedings could be had. to compel a partition, as between joint tenants, or tenants in common, for those estates were created by the act of the parties. The statute authorizes this proceeding, and directs the mode of procedure in making partition. The same reasons for not allowing a review in actions on book, in the action of account, or declarations for betterments, and various other cases of similar character, exist in this case. It is a statutory proceeding, and not a civil cause prosecuted according to the course of common law.

The result is that the judgment of the county court must ■ be affirmed.