Staniford v. Fullerton

The opinion of the Court was drawn up by Weston C. J. Assuming that JohnS. Trott, the execution debtor, had an interest, as tenant in common, in the land levied upon by the demandant, at the time of the levy, from Benjamin Trott, the father, through Josiah Trott, and also a share therein as one of the heirs of Benjamin Trott, which is however controverted, there is a fatal objection to the maintenance of the title of the demandant against the tenant. The levy was upon the whole estate, described by metes and bounds, subject to the life estate of Mehitable Trott. This may be good against the debtor, or against strangers, but is void as against other co-tenants in common. This is a principle fully supported, by the authorities cited for the tenant. Their effect is attempted to be avoided by the counsel for the demandant, by the assumption, that the deed from David, G. Trott to the tenant was void. But this is not sustained by the facts in the case. David G. Trott had been long in the possession of the farm, claiming and occupying it as his own. He had a seizin then either by right or by wrong, which he might lawfully convey, and which the tenant might lawfully purchase. He was the undoubted owner of a part of .the estate in common, as one of the heirs at law of Benjamin Trott. This passed to the tenant, and entitles him to avoid the levy. That right may be exercised by any co-tenant, whether his proportion be great or small. But if necessary, the evidence might justify a jury in finding, that David G. Trott had ousted all the other heirs, except John sufficiently long to bring his seizin, thus acquired, under the protection of the statute of limitations. And if the levy is avoided, as it may be by the tenant his title to [231] the share of John may have become indefeasable, upon the same principle. Judgment on the verdict.