102 A. 535 | N.H. | 1917
The plaintiff has not lost his title to 7/32 of the homestead which he owned in common with his mother at the date of her conveyance of a parcel thereof to the defendant because of his failure to assert his title while the defendant improved the property. Clark v. Parsons,
It was suggested in argument that such course is now prevented by legal proceedings that have been had. If with notice to, or assent by, the defendant, so that he is now bound, the rights of others have so attached to the balance of the homestead that the defendant may not now insist upon the allotment of the plaintiff's share out of that part of the property either by new proceedings or the bringing forward of any that may have been had and the entry correct judgment therein, the plaintiff may be entitled to share in the tract conveyed by his mother.
Should such partition become necessary, the plaintiff will, upon partition, be entitled to 7/32 of the land and the defendant to 25/32 the land and the buildings. The plaintiff's expectation that by silence he could in a division of the property obtain part of the *517
defendant's property without paying for it must have been formed in ignorance of the equitable principles upon which partition proceeds both under the statute and in equity. Hale v. Jaques,
"Where one tenant in common, supposing himself to be legally entitled to the whole premises, has erected valuable buildings thereon, he will be entitled to an equitable partition of the premises, so as to give him the benefit of his improvements; or if that cannot be done, he will be entitled to a compensation for those improvements." 1 Story Eq. Jur., s. 655. This may be the rule even when one co-tenant is ignorant of the improvements made by the other who is also aware of the nature of his own title (Leavitt v. Locke,
As the case now stands, the plaintiff has not shown himself entitled to partition although he may be able to do so.
Case discharged.
All concurred.