Whitten v. Whitten

| N.H. | Jan 15, 1858

Bell, J.

This bill is in the form of a bill for partition, and it may be properly regarded as a bill in equity. We think such a bill may be well maintained. There are no negative words in the statute providing for a partition upon petition, and the partition of real estate is an undoubted branch of equity jurisdiction. The proceeding in equity is much more simple and convenient than that provided by the statute, which is rendered difficult and annoying by a great number of rigid rules as to details.

If it should be regarded as a petition under the statute, its form would deserve little commendation, since most of its statements are merely irrelevant and immaterial.

1. It is objected that the plaintiff, in alleging his title by deed from Jesse Whitten, Sr., has not set out any delivery of the deed, and has thus failed to show any valid title in himself. But there does not seem to us to he any substantial foundation for this objection. It is enough to allege a conveyance by deed. A delivery is implied in the very nature of a deed. We have found no form in legal or equitable proceedings where the delivery of a deed is alleged. The usual form is to allege that the party, by his deed or indenture, bearing date, &c., granted or demised, &c. Equity Draftsman 320, 169, 183, 185, 189 ; 2 Ch. PI. 218, 219, 223, 217, 216, 215 ; Gould’s PI. 189, sec. 42. In Arch. Civ. PI. 138, it is said “ Delivery, though essential to a deed, is never averred in pleading.” Cro. El. 738; Cro. Jac. 420 ; 2 Ld. Ray. 1538; 1 Saund. 291, n. 1.

2. It is said that no averment is made of any entry for condition broken, and the plaintiff is not by his own showing seized of any such interest in the land as entitles him to maintain either a bill in chancery or a petition under the statute for a partition. This objection seems to us well founded. In the case of Brown v. Brown, 8 N. H. 95, it was held that a party, whose interest in the estate is only a remainder after a freehold estate, could not maintain a petition for partition. And it was said by the court that a petition for partition lies only for one who has a seizin in fact of the premises. If he has been disseized it does not lie. Bonner v. Proprietors, 7 Mass. 475" court="Mass." date_filed="1811-06-15" href="https://app.midpage.ai/document/colby-v-dillingham-6403710?utm_source=webapp" opinion_id="6403710">7 Mass. 475. The right of a party who is entitled to take advantage of a condition broken, seems a much more slender title than that of a reversioner. He has but a right to enter, of which he may or may not take advantage ; and if he waives the forfeiture, as he may, the partition would be without effect.

3. As to the part of the land conveyed to Hersey, the plaintiff shows that he has no title at law or in equity. He has voluntarily conveyed it to Hersey for the purpose of making some settlement with the Lake Company. He states no contract of Hersey, but only what Henry A. Whitten told him. Perhaps he might state a case entitling him to set aside his conveyance to Hersey as fraudulent, or entitling himself to a recon-veyance from Hersey, or to charge Hersey as his trustee, but at present he has not done it.

4. But the bill is multifarious. It asks for a partition between himself and his co-tenants, Henry A. and Joseph J. Whitten: to which he might be entitled as against them and Thomas L., the mortgagee of Henry A., if he showed a title in himself. It also asks for a reconveyance of the land conveyed to Hersey, which is a matter entirely between himself and Hersey, with which the other three defendants have no interest or concern. Matters thus entirely unconnected cannot be joined. Story (Eq. PI. 224, &c., section 275) states almost this precise case: Where a bill was brought for a partition, and also to set aside a lease made by the plaintiff to a third person of a part of the estate, on the ground of fraud, it was held the bill was multifarious ; for the parties against whom the partition was sought ought not to be involved in any litigation as to the validity of the lease in which they have no interest. Whaley v. Dawson, 2 Sch. & Lef. 367, 370, 371, S. P.; 1 Dan. Ch. 390 ; Banks v. Walker, 2 Sandf. Ch. 344 ; Boyd v. Hoyt, 5 Paige Ch. 65" court="None" date_filed="1835-03-03" href="https://app.midpage.ai/document/boyd--suydam-v-hoyt--parsel-5548135?utm_source=webapp" opinion_id="5548135">5 Paige 65 ; Swift v. Eckford, 6 Paige Ch. 22" court="None" date_filed="1836-04-05" href="https://app.midpage.ai/document/swift-v-eckford-5548215?utm_source=webapp" opinion_id="5548215">6 Paige 22.

If a joint claim against two is improperly joined in the same bill, with a separate claim against one of them, both or either may demur', and the bill will be dismissed as to those who demur.