Upham v. Bradley

| Me. | Jun 15, 1840

The opinion of the Court, was drawn up by

Si-iepeey J.

It appears from the exceptions, that the petitioners filed their petition in this county, praying that one third part of the township designated as letter B in the seventh range of townships, from the easterly line of the State, might be set off to them. The township was within the county, but it was not so alleged in the petition ; and for this cause the respondent’s counsel moved the Court to dismiss it for want of jurisdiction. It is only where it is apparent on the record, that the Court has not jurisdiction, that the process will be abated on motion. Gage v. Gannet, 10 Mass. R. 176. It not appearing in this case affirmatively by the description that the lands were not within the county the motion was properly denied.

At the trial, an objection to further proceedings w'as interposed for want of proof, that the person who signed the petition as attorney for the petitioners, was duly authorized to dci so; and the objection w'as not sustained by the Court. This Court has decided, that it is not necessary in our practice, that an attorney should produce evidence of his authority to appear and represent a party; the fact that he is admitted to practice as such being sufficient. Boom Corporation v. Lamson, 16 Maine R. 224. If the objection extends further, it must be in the nature of a plea to the ability of the petitioners to prosecute,' which can only be taken by a plea in abatement; and it was not open to the respondent under the plea and brief statement which had been filed.

It was made a point, of the defence by the brief statement, that the lands reserved for public uses had not been set off. The second section of the stat. 1838, c^ 345, applies to process thereafter to be commenced : and tbe requisitions of the law may all be complied with in making the partition.

Nor can the fact, that some of the petitioners have conveyed their interest in mortgage be interposed by the respondent to prevent their sitare from being assigned to them. Between the parties to a mortgage and their assigns the title is in the mortgagee or his assigns ; but with respect to strangers to the mortgage, the mortgagor in possession is regarded as the owner of the estate, and so seized of it as to enable him to convey it, or to maintain a real action counting upon his own seizin. Wellington v. Gale, 7 Mass. R. 138. Such title was sufficient to prove the issue of seizin, and to entitle the petitioners to a decision of it in their favor.

Since the commencement of the process, two of the petitioners have conveyed their interest to a third person, but this fact is not by the plea or brief statement made a matter of , defence ; and unless it can be received under the general issue, the respondent cannot avail himself of it. It has been decided, that in a writ of right every thing but collateral warranty may be given in evidence under the general issue. Poor v. Robinson, 10 Mass. R. 134. But in actions of entry the defendant under the general issue can give in evidence a title, under which he does not claim, only to defeat the seizin of the plaintiff, which has reference to the time of the commencement of the suit. If it does not have this effect of defeating the plaintiff’s seizin, it must be pleaded in bar. Walcot v. Knight, 6 Mass. R. 419. As the respondent has not put this fact in issue, he can have no advantage from it; and no injury can happen from permitting the petitioners to prosecute, as their grantee has recognized their right to do it.

The respondent denies the right of several persons to join and have their proportion assigned to them to be holden as between themselves in common. It is provided by stat. 1826, c. 347, ,<?. 7, that two or more tenants in common may join or sever in petitions for partition; and the answer to that part of the brief statement which alleges, that the petitioners were not jointly seized may be, that the statute does not require it, but permits such a joinder in tbe suit without regard to the character of the title. The statute c. 37, authorizes “ the share or shares of the party applying for the same to be set off and divided from the rest,” and it does not require,' that the share of eaeh petitioner shall be assigned to him to be held in severalty. The manner in which the petitioners shall continue to hold among themselves after the partition is made can be of no importance to the owner or owners of the part remaining; and it is not a matter which they are authorised by the statute to put in issue. Nor is it put in issue by the pleadings in this case. The manner in which the partition shall be made can properly arise only on the report of the commissioners. It may appear by their return, that the' estate cannot be subdivided without great inconveniénce, and it may all be assigned to one, as provided in the ninth section of the statute; or it may be made in certain cases by assigning the use or profits ior certain periods as stated in Hanson v. Willard, 3 Fairf. 147. One object of the statute appears, to have been to avoid the inconvenience which exists under the writ of partition, of having all the shares in the tenancy assigned; and another, that of enabling one or more of the tenants to relieve themselves from difficulties, to which they might be subjected on account of the character or situáfion of their associates. But there is no indication, that it.'was the policy of the law to destroy tenancies in common, except where some one or more of the associates desired it. And there does, not appear to be nny provision of the statute which deprives the persons petitioning from framing their petition to suit their own convenience so far as it respects the future occupation of the portion to be assigned to them.

Exceptions overruled.