| N.H. | Jun 15, 1873
The power of compelling partition is incident to all estates held by tenants in common. 1 Washb. R. P. 581. In Morrill v. Morrill, 5 N. H. 136, partition is said to be a matter of right; and the power and manner of compelling partition is prescribed by chapter 228, General Statutes; — see, also, Hoyt v. Kimball, 49 N. H. 322. Undoubtedly, the right of partition may be waived by the parties in interest, who, by express condition or proviso, may restrain and inhibit the exclusive beneficial use and enjoyment of estates holden in common or joint tenancy, to any extent short of an absolute restriction of alienation. Mitchinson v. Carter, 8 D. & E. 60; Coleman v. Coleman, 19 Pa. St. 100; Avery v. Payne, 12 Mich. 540" date_filed="1864-10-18" court="Mich." case_name="Avery v. Payne">12 Mich. 540; Hunt v. Wright, 47 N. H. 396; Hoyt v. Kimball, before cited; Platt on Covenants 404; Broom Leg. Max. 539. But, if the language used in a deed is of doubtful meaning, courts will always interpret it with reference to the probable intention of the parties, which must always be made apparent in order to operate as a restraint or incumbrance upon the full and free enjoyment, title, and control of the property conveyed by deed. Tims, restrictive conditions are never favored in law; and if it be doubtful whether a clause in a deed imports a condition-or a covenant, the latter construction will be adopted. Hoyt v. Kimball, before cited. Courts, moreover, will avoid either construction, unless the one or the other is plainly demanded by the terms of the deed. If it appear in the slightest degree doubtful whether any restraint upon the full and free beneficial use of an estate conveyed was intended by the parties to a deed, they will look .carefully for some motive which may seem to indicate the intention of the parties, and aid the interpretation of the deed.
The clause which we are called on to interpret in this deed is not inserted as a restrictive condition, nor is it found among the covenants ; but it is contained in the body of the premises, and is incorporated in the description of one of the tracts of land conveyed. No motive is apparent for making the clause a proviso, condition, or covenant; and if such a purpose had been intended, it would naturally have found expression by unequivocal adoption in the proper formal parts of the deed. On the contrary, it seems to have been carelessly used as descriptive merely of the status of the land conveyed, — as of land which is in common and undivided, — the words “ to remain ” probably being used as equivalent to “ refraining ” or “ the same being” in common, etc.
Such an interpretation being consistent with the ordinary incidents of estates, restrictive conditions being regarded with disfavor, and no reason being apparent for regarding the clause as a condition or a covenant, we are inclined to consider it as descriptive merely, and to hold that the parties are entitled to have partition.
Let an order issue to the trial term that partition be granted according to the mode provided by law.