| Me. | Feb 16, 1891
Bill in equity by two children of a deceased mother against their father and sister, praj’ing for a partition of the homestead by a sale and distribution of the proceeds and for an account.
The bill alleges, inter alia, that each of the complainants and their defendant sister is seized in fee of one undivided third of the premises; and that their father " has an estate by curtesy in and to one undivided third part of the same which has never been set out and assigned to him.” We do not understand this to mean that the father is "tenant by the curtesy,” as that phrase is commonly used. For prior to the change wrought by our statutory provisions, a husband and wife, even before any children were born to them, were jointly seized during their joint lives of a freehold in her lands held in fee. And after the birth of a child who could inherit her lands, he became tenant by the curtesy initiate of the whole and not of one third of her lands ; and upon the death of the wife his tenancy became consummate and vested without any assignment, and was subject to betaken in execution of his debts. St. 1821, c. 38, § 18. 1 Wash. R. P. 166. Witham v. Perkins, 2 Maine, 400; Day v. Bishop, 71 Maine, 132, 144; Foster v. Marshall, 22 N. H. 491.
In his answer, the father denies the complainants’ title and claims the fee in himself acquired by adverse possession beginning in 1854, though his wife diet! in April, 18(51. The defendant sister also makes the same denial against the complainants and the same claim in behalf of the father, and disclaims all title in herself as against him.
Courts of equity do not generally settle the conflicting titles of parties in their suits for. partition. Hence, to entitle the complainants to a decree for partition, they must show a clear legal title. Nash v. Simpson, 78 Maine, 142, 150. And especially when, as in this case, the delivery of the deed to the wife, from whom the complainants derive their title, is denied in the answer and by the testimony of the father. Nichols v. Nichols, 28 Vt. 228.
But it is said that the father is not a competent witness for the alleged reason that the complainants were "made parties as heirs of a deceased party,” within the meaning of K. 8., e. 82, § 98. TTe do not consider this objection tenable. For the complainants do not prosecute this suit as heirs of their deceased mother, as they would a proceeding to redeem a mortgage given to her (Cary v. Herrin, 59 Maine, 361) ; or as they would defend a bill against them to recover land held by their mother in her life time, in trust for her husband'. Burleigh v. White, 64 Maine, 23. They do not in this case represent their mother but themselves. . They set up a title in themselves. If their title had come by deed or devise from their mother, they would not then claim that they were made parties as heirs of their deceased mother. No more can they now that it came by descent. They are heirs in fact whichever way the title may come. But they do not bring this suit because they are heirs, but because they claim to hold the homestead in their own individual right. Wentworth v. Wentworth, 71 Maine, 75.
They can not clear up their title by petition under R. S., c. 104, § § 47 and 48 ; for possession on their part is essential by the very terms of the statute. Oliver v. Look, 77 Maine, 585. And they are not in possession, for . their bill alleges that the father " is now, and ever since the decease of their mother in April, 1861, has been in the exclusive use and occupation of all said premises,” which is fully corroborated by the testimony of the father.
Whether they can do it by a real action remains to be seen. If they have at any time been disseized by their father, then their "right of action first accrued at the time of such disseizin,” R. S., c. 105, § 3, clause 1. If, when such right of action first accrued they were minors, they can commence their action "within ten years after that disability is removed.” R. S., c. 105, § 7 ; Coombs v. Persons Unknown, 82 Maine, 326, 329.
The bill will be retained a reasonable time to allow the complainants to establish their legal title, if they desire so to do; otherwise it will be,
Dismissed with single costs.