| Me. | Jul 1, 1852
The opinion of the Court, Shepley, C. J., Wells, Rice, Hathaway and Appleton, J. J., was drawn up by
This is a bill in equity to which there has been a demurrer and joinder.
The plaintiffs claim to be equitably entitled to recover possession of, and to hold one half part of certain real estate described in their bill, situated in the city of Bangor.
The subject matter referred to in the bill was before this Court in 1847, on a. petition for partition. Soutter & al v. Porter, 27 Maine, 405. Since that time the interest of Porter has passed by sundry conveyances to the defendants.
It is alleged in the bill, and admitted by the demurrer, that the defendants are the legal owners of one undivided half of the entire estate, deriving their title through sundry mesne conveyances, from one Micajah Drinkwater, and that the title of the plaintiffs is as set forth ha the bill, being a claim to represent the interest formerly owned by Stephen Goodhue. The defendants are in possession of the whole estate.
A careful examination of the title was had in the case of Soutter v. Porter, and the Court then decided, that the petitioners have “ failed to establish any title as tenants in common to an undivided share of the premises.”
The plaintiffs now pray for relief; and that this Court will, by decree, compel the defendants to convey to them one undivided half of the premises, or such portion thereof, as they are entitled to possess in severalty, or that the defend
The defendants claim title to one half of the estate only, and the plaintiffs admit their title to be valid to that extent, and deny their right to any greater interest. Such being the extent of thedefendants’ interest in the estate, it is difficult to perceive how, on any equitable principle, they could be compelled, against their will, and without consideration, to convey that interest, or any portion thereof, to the plaintiffs, even if this Court had power to make and enforce such a decree. And it is equally difficult to understand on what principles they should be compelled to convey property to which they claim no title.
The defendants may, if they elect, obtain partition of property which they hold in common with others. The plaintiffs ask that they shall be compelled to do so against their will. The question for consideration is, whether such compulsory power is possessed by the Court.
This Court does not possess general equity powers, but is authorized to act as a Court of equity, in certain cases and classes of cases, pointed out in the statute, but this case in not among them.
It was intimated, at the argument, that this case might fall under the clause of the statute authorizing the Court to act in cases of fraud, though it was not very distinctly pointed out, wherein the defendants had acted fraudulently. The facts seem to be, simply, that the defendants being the undisputed owners of one undivided half of the estate and in,the actual possession of the whole, decline to yield that possession until some party, having the right, shall in a legal manner dispossess them. The plaintiffs have attempted to obtain title to a portion of the common property. With that attempt, the defendants have in no way interfered. Thus far the plaintiffs have failed to secure such a title as will enable them to dispossess the defendants. This would rather seem to be
The defendants can only be required to account for rents to the party, who has the legal title to that portion of the estate not owned by them.
The bill is therefore dismissed with costs for defendants.