20 N.H. 9 | Superior Court of New Hampshire | 1849
The petitioner alleges that he was tenant in common of three eighteenth parts of two tracts of land, with the defendant and other persons unknown. He derives title by the levy of an execution upon the premises, as the property of Henry Knight. Henry Knight was seized of one ninth part of the premises, as heir to his father, John Knight; and there was evidence tending to show that he held one half of the interest of Caleb, another of the nine surviving heirs of John Knight, deceased.
A petition for partition may be maintained by a tenant in common, seized of a freehold estate, or possessed of an estate for years, in the land.
It is not necessary that the petitioner should show an estate absolutely indefeasible and free from all defects. It is sufficient if he show an estate primd fade good against the petitionee. If, for instance, he produce a deed from an admitted tenant in common, it is not necessary for him to prove that the grantor was not an infant, or non compos, or a feme covert, or that there was no secret taint infecting the title, and rendering it void as against the grantor, or some other person. It is sufficient if the same evidence of title is given that is required to maintain real actions generally. And even in a writ of right, which is the highest writ in the law for the recovery of real estate, the seizin of the demandant in fee simple is proved, primd facie, by evidence of his actual possession, which is always sufficient against a stranger. Such a possession, with claim of title, is sufficient to enable a grantor to convey, and the grantee, entering under the conveyance, acquires a freehold. 2 Greenl. Ev. 553.
In this case the defendant and Henry Enight were each seized of at least one ninth part of the premises in controversy ; and they, with their co-tenants, were, so far as appears, in actual possession. There is no evidence of any adverse claim or possession.
The defendant and Henry also claimed to own Caleb Enight’s share, which was one ninth part. They admitted each other’s right, and all the other co-tenants recognized their right to that share. Henry Enight was, therefore, in actual possession of three eighteenth parts of the premises, claiming to own them; and that, within the authorities, is primci facie evidence of a freehold estate, against this defendant, who sets up no title adverse to that, and has heretofore recognized and admitted it.
Hnder these circumstances the petitioner levied his execution upon Henry Enight’s three eighteenth parts, and that levy gives him a seizin, in fact, of the premises. The evidence to this point was, therefore, properly admitted.
But various objections are taken to the petitioner’s levy, and must be considered.
The appraisers certify, upon the execution, that they appraised three eighteenth parts of the land as Henry Enight’s interest, and set that part off in part satisfaction of the execution. The officer’s return states that the appraisers set off “ the same lands” to the judgment creditor at the appraised value; and thus it appears to be a levy upon the whole of the land, and not upon the three eighteenth parts.
If this be admitted to be so, the extent seems still to be good as against the defendant. The certificate of the appraisers is no part of the officer’s return, unless he makes it so by some reference to it in his return. It is the return which is the proper evidence of the levy, and of the title
The officer, however, had leave to amend his return, so as to show a levy upon the three eighteenth parts, as it in truth was. To this the defendant objects, because, as he claims Henry Knight’s interest by virtue of a levy of an execution, he is a third party, to whose prejudice no such amendment can be made; and he cites Bowman v. Stark, 6 N. H. 459, and Rev. Stat. 367, see. 11, to sustain his objection.
But this question has. already been considered and settled in this court; and it has been determined that when there is something in the record to amend by, and which sufficiently indicates to all how the proceedings have actually been, and that they have been regular, though informally returned, such amendments may be allowed, even against third persons. Whittier v. Varney, 10 N. H. 291.
The same doctrine has been reaffirmed since the Revised Statutes were passed. Gilbert v. Bell.
It is also contended that the petitioner does not maintain his right in all the land described in his petition, and it is shown on the part of the defendant that one Dolly Johnson has levied an execution upon part of the land of which Henry Knight was seized in common with others, before the levy was made by the petitioner. The attachment made by Dolly Johnson was prior, in fact, but her levy was made after the petitioner’s attachment.
An execution against one holding lands as a tenant in common, cannot be extended by metes and bounds upon a part of the land so holden. Porter v. Hill, 9 Mass. 34 ; Bartlett v. Harlow, 12 Mass. 348; French v. Lund, 1 N. H. 42; Thompson v. Burbec, 12 N. H. 563.
It is not necessary, in this case, to settle how far the levy of an execution, which is supposed to be in invitum, and especially a levy like the present, in which Henry Knight did not participate, and which was in fact unknown to him by reason of his absence, can operate as an estoppel.
The levy of Holly Johnson having been made upon only, a part of the land held in common, is not valid against the defendant, and he and any other co-tenant may avoid it", and according to the case of French v. Lund, that has been cited, it is not valid against the petitioner. He had acquired an interest by his attachment prior to the levy made by Dolly Johnson. She could, therefore, do nothing afterterward to affect his right, and he is not estopped by the subsequent levy.
But without settling this question definitely, as it is one in which Dolly Johnson, not a party to this suit, has an interest, and likewise because, in this view of the case, an amendment in the return of the petitioner’s levy, hereafter to be noticed, may be required, it is, perhaps, sufficient for this case to say that this levy of the execution of Dolly Johnson is clearly invalid against the defendant. He is not bound by it, for the reason that has been adverted to, and he does not claim under it.
He ought not, therefore, to be permitted to set it up. If it is good in any event against the petitioner, it is so only by way of estoppel, and the defendant is not in the position in which he can avail himself of that estoppel. . It becomes unnecessary, therefore, to discuss the questions that have arisen as to the form and effect of her levy.
As to parts of the land described in the petition, and not embraced in the levy of Dolly Johnson, the defendant claims himself to hold them by virtue of a levy of an exe
The case states that on the 20th day of January, 1844, the defendant attached all the right and interest of Henry Knight “ in the premises herein before described, and recovered judgment ; and that a levy was made on the ‘ premises attached.’ ” Whether that levy was made upon all the lands held in common, does not clearly appear.
The petitioner’s levy was made on the 18th day of August, 1845, and it appears by the officer’s return to have been commenced at that time. It is, therefore, clearly subsequent to the defendant’s levy, and as the case now stands, the defendant must, upon this point, prevail.
In arriving at this conclusion, we infer that the defendant’s levy embraces all the lands held in common, because the case states that he attached “ all Henry Knight’s interest in the premises herein before described,” which plainly includes all the land embraced by the petition, and that he levied on “the premises attached,” though it would appear that the defendant did not claim to hold the tract of land embraced in the levy of Holly Johnson.
But it appears, from inspecting the original execution, which has been laid before us, that two appraisers were appointed and sworn on the 4th day of March, 1845, upon the petitioner’s execution, which was in season to pursue the lien created by his attachment, which was made on the 16th day of January, 1844, prior to the defendant’s attachment. The oath is certified by the officer as a magistrate, and no suggestion was made upon the trial, as we understand, that the lien acquired by the attachment was lost.
Probably, if such an objection had been made, it might have been obviated by an amendment, since the facts appearing upon the record sufficiently indicate that the levy was commenced on the 4th day of March, 1845, although not completed until the 18th day of August following,
But these matters are not now regularly before us, and upon the questions transferred, the defendant is entitled to have the verdict set aside and a new trial granted. TJpon an amendment of the officer’s return of the petitioner’s levy, he would be entitled to three eighteenth parts.
A new trial granted.
