47 Vt. 721 | Vt. | 1875
The opinion of the court was delivered by
We present no discussion or statement of the evidence. The facts alluded to or stated as found, with a brief statement by the reporter, to be educed from the bill and answer, of the grounds of claim and defence, will make sufficiently intelligible the views of the court as expressed in what follows.
The orator, Piper, could, not, in the petition for partition in the county court, avail himself of the claim he asserts in respect to the house in question. In that proceeding, the rights of the parties are to be governed by their respective legal title as tenants in common. Under the deed of the defendant to Piper, they were tenants in common of the entire twenty acres, with the house on it; so that, in view of that deed, the defendant was equal owner with Piper of the house as well as of the land. No form of issue under that petition, could have resulted in changing the operation of that deed into one of the south half of the lot in severalty. Nor could the relation evinced by that deed, be changed as the result of such proceeding, short of impeaching the deed for fraud, and thus leaving Piper without any legal title in the land, and only an equitable title and right in either house or land. This answers the point that Piper ought to have asserted his several and exclusive right to the house by plea to the petition, and that not having so done, he is precluded by his neglect in that respect, from going into a court of equity.
The only remaining ground of objection to his resorting to such court that could be asserted, is, that by his consenting to' the ap
It only remains to inquire whether, on the facts proved, the defendant is entitled to have one half, or any part, of the house in question. It is shown that he has not paid, nor agreed to pay, anything for it; that he has been paid by Piper for one half of the land ; that he permitted Piper to put the house upon the land before deeding, with the full understanding that Piper was to have title in severalty to the land on which it was placed. We find, also, that he agreed, in consideration of the money paid him by Piper, and so it was his duty, to give Piper a deed of the south half of the land in severalty, and that Piper accepted the deed that was made, still asserting his right, and yielding in that respect in reliance upon the assurance of the defendant that the result would be the same under that deed as under one conveying the south half in severalty. We fail to find that Piper undertook, or came under any obligation, to purcha'se, or to find a purchaser for, more than the south half of the twenty-acre lot; or that the
The result illustrates how easy, as well as how politic and profitable it would have been for the defendant to have avoided occasion for litigation, by giving Piper such a deed as he was entitled to, or, even in his needless proceeding for partition, by letting the commissioners make the partition conformably to what they should have found to be the just rights of the parties, from evidence showing all the facts constituting the real transaction between them.
The decree is affirmed.