23 Conn. 167 | Conn. | 1854
The deed, from the defendant to his son, of his undivided interest in the common property, was binding upon the parties, and good against all persons, except his creditors. The grantee, upon receiving the conveyance, became a tenant in common, with the two female heirs of Mr. Sherwood, and it was in the power of either of them, by legal proceedings, to compel a partition of the common property.
In a suit for that purpose, before any interference on the part of the creditors of the defendant, no person, except the co-tenants, could legally be made a party to the proceeding. For, until such creditors had appropriated the property, or some portion of it, in payment of his debt, or had instituted some proceeding for that purpose, he had no legal interest in the property.
If it was in the power of either of the co-tenants, by legal proceeding, to compel partition, it is difficult to see why they
Their object, in giving release deeds, was not to create any new title, but merely to extinguish the rights of the grantors in the shares released, and thereby to effect partition. This they might have accomplished, by means of a deed of partition, but the more usual mode of doing it in this state, is by release deeds, the one adopted by them. For, although a release deed here, may have the effect of a primary conveyance, operating as a transfer of an estate, without warranty, yet it retains its common law character, of discharging a right. It will convey whatever right or interest the releasor has in the property. Dart v. Dart, 7 Conn. R., 250.
The plaintiff, therefore, when he levied his execution, might well treat the partition as legal, as having been made by the defendant, through the agency of his son, by means of his deed, although the plaintiff, at the same time, insisted that it was void, so far forth as it was designed to defraud the defendant’s creditors. And of this, the defendant has no right to complain. When he gave the deed, he parted with all his interest in the property, and empowered his son to do with it, as he pleased.
Any other construction might operate most injuriously upon the other co-tenants. They, relying upon the validity of the partition, made by all the persons having any legal interest in the property, and being ignorant of any particular design on the part of the defendant and his son, may have gone forward and made substantial improvements upon their respective shares, erected buildings, and improved the land.
Under these circumstances, to hold the partition void, and all those improvements common property, would be. manifestly unjust. Baldwin v. Breed, 16 Conn. R., 60.
We are, therefore, of opinion, that the testimony offered, by the plaintiff ought to have been received, and consequently advise a new trial.
New trial advised.
