9 Barb. 500 | N.Y. Sup. Ct. | 1850
The court below charged the jury that the proceedings in partition did not become effectual to sever the interests of the tenants in common in the land, until the record in partition was finally made up and filed. That was done on the 9th of Sept. 1845. The judgment in partition upon the report of the commissioners, was rendered at the term of the court of common pleas held on the first Monday in June, 1845. The hay in question was cut and taken in July following. The premises where the hay grew and was cut were set apart, in the report of the commissioners, to Robert Land, under whose directions the hay was taken by the defendants. The report of the commissioners was confirmed by the court, and the partition so made was ordered to stand firm and effectual. The judgment of the court was complete, so far as the actual partition of the premises was concerned, in June, before the hay was severed from the land. The court had expended their power on that subject, and could do nothing further, so far as respected the premises upon which the hay in question was growing at the time. The further proceedings to be had in the partition suit, were for the sale of another portion of the premises held in common, which the commissioners had reported could not be divided without great injury to the interests of the parties. A record of judgment is nothing more than evidence, and is the highest kind, and, in most cases, conclusive evidence of the judgment of the court. It is an authentic history of the proceedings and
There is nothing, in my judgment, to shake the soundness of the foregoing view, except certain other provisions of the revised statutes, which are relied upon by the counsel for the defendant in error. Those provisions are as follows, viz.: “ The clerk of every court of record shall mark upon the back of every record of judgment filed in his office the time of filing the same. No judgment shall be deemed valid, so as to authorize any proceedings thereon, until the record thereof shall have been signed and filed.” “ No judgment shall affect any lands, tenements, real estate or chattels real, or have any preference, as against other judgment creditors, purchasers or mortgagees, until the record thereof be filed and docketed as herein directed.” (2 R. S. 360, §§ 11,12.)
These sections, I am inclined to think, were only intended to define and secure the liens of judgments upon land, for the money adjudged to be paid, and do not apply to a case like the present,
There is another ground upon which I think the judgment should be reversed. The parol arrangement between the tenants in common of the land of which the premises in question were a part, was entered into in 1838. It contained no provision for its continuance for any time in particular. Afterwards, and in December, 1841, Phelps, the plaintiff in the court below, presented the petition to the court of common pleas for the partition of the lands held in common, which petition was sworn to by him on the 28th day of. August preceding, in which he stated that he, together with Robert Land and the other defendants in the partition suit, were possessed of the said lands of which partition was sought, as tenants in common. This petition was duly filed and became a matter of record, and the foundation of the subsequent proceedings, which resulted in a judgment in partition. In those proceedings the defendant in error was the plain
If Robert Land was a tenant in common with the plaintiff below, of the premises in question, he had the same right to take the hay as the plaintiff, and if the defendants, in taking the hay, acted under the directions of Land, trespass will not lie against them.
I think the judgment of the court of common pleas should be reversed, with costs, and a new trial ordered. As to the right of the plaintiff in error to costs, see Laws of 1844, ch. 312, § 2; 3 R, S. 3d ad. p. 709, § 40,.