Orman v. Phelps

By the Court, Welles, J. The court below charged the jury that the proceedings in partition did not become effectual to sever the interests of the tenants in common in the land, until the record in partition was finally made up and filed. That was done on the 9th of Sept. 1845. The judgment in partition upon the report of the commissioners, was rendered at the term of the court of common pleas held on the first Monday in June, 1845. The hay in question was cut and taken in July following. The premises where the hay grew and was cut were set apart, in the report of the commissioners, to Robert Land, under whose directions the hay was taken by the defendants. The report of the commissioners was confirmed by the court, and the partition so made was ordered to stand firm and effectual. The judgment of the court was complete, so far as the actual partition of the premises was concerned, in June, before the hay was severed from the land. The court had expended their power on that subject, and could do nothing further, so far as respected the premises upon which the hay in question was growing at the time. The further proceedings to be had in the partition suit, were for the sale of another portion of the premises held in common, which the commissioners had reported could not be divided without great injury to the interests of the parties. A record of judgment is nothing more than evidence, and is the highest kind, and, in most cases, conclusive evidence of the judgment of the court. It is an authentic history of the proceedings and [504] judgment in the suit. It is, nevertheless, only evidence. It is the fact, or facts which it proves, that is to have effect. The important fact, in reference to the question under consideration which this record proved, was the judgment in partition, by which, not only the tenancy in common in the premises where the hay grew, was severed and destroyed, but the title in severalty to such premises, as between the parties to the partition suit, was vested in Robert Land. This judgment was rendered in June, 1845, and gave him the immediate right of entry, and vested" in him, eo instanti the judgment was rendered, the title to the premises set apart to him, with the grass then standing and growing thereon, which was, until severed therefrom, a part of the freehold. The statute provides that “ upon any report of commissioners being confirmed by the court, judgment shall thereupon be given, that such partition be firm and effectual forever, and such judgment shall be binding and conclusive.” (2 R. S. 322, $ 36.) That the evidence of the fact was not made perfect until after the alledged trespass had been committed, was immaterial. If it was perfected in time to be used at the trial, it was sufficient, and the delay in making it up does not lessen or alter its grade or effect. There is nothing, in my judgment, to shake the soundness of the foregoing view, except certain other provisions of the revised statutes, which are relied upon by the counsel for the defendant in error. Those provisions are as follows, viz.: “ The clerk of every court of record shall mark upon the back of every record of judgment filed in his office the time of filing the same. No judgment shall be deemed valid, so as to authorize any proceedings thereon, until the record thereof shall have been signed and filed.” “ No judgment shall affect any lands, tenements, real estate or chattels real, or have any preference, as against other judgment creditors, purchasers or mortgagees, until the record thereof be filed and docketed as herein directed.” (2 R. S. 360, §§ 11,12.) These sections, I am inclined to think, were only intended to define and secure the liens of judgments upon land, for the money adjudged to be paid, and do not apply to a case like the present, [505] where the proceedings and judgment are in rem—and where the judgment is like a specific decree in a court of equity. This construction seems to be authorized by the terms of the sections recited, “ No judgment shall affect any lands,” &c. “ as against other judgment creditors, purchasers or mortgagees, until” &c. The plaintiff in the court below can not be regarded, it seems to me, as a judgment creditor, purchaser or mortgagee, within the meaning of the 12th section, It is equally clear that the 11th section does not apply to the present case. No proceedings have been sought to be had upon the judgment in partition in this case—none, certainly, under which the defendants below seek to justify their acts. The defendants’ counsel, on the trial, requested the court to charge the jury, that by the proceedings in partition, the land in which the hay grew had become the sole property of Robert Land, and that if the jury believed the defendants were acting as his servants, or by his direction, when they took the hay, the verdict should be in their favor. The court declined so to charge, and decided and charged that the land did not become the sole property of Robert Land until the record in partition was filed, (fee. I think the court erred in charging as it did, and in refusing to charge as requested. There is another ground upon which I think the judgment should be reversed. The parol arrangement between the tenants in common of the land of which the premises in question were a part, was entered into in 1838. It contained no provision for its continuance for any time in particular. Afterwards, and in December, 1841, Phelps, the plaintiff in the court below, presented the petition to the court of common pleas for the partition of the lands held in common, which petition was sworn to by him on the 28th day of. August preceding, in which he stated that he, together with Robert Land and the other defendants in the partition suit, were possessed of the said lands of which partition was sought, as tenants in common. This petition was duly filed and became a matter of record, and the foundation of the subsequent proceedings, which resulted in a judgment in partition. In those proceedings the defendant in error was the plain [506] tiff and moving party. After that, I hold he was estopped hy the record from denying that Robert Land was a tenant in common with him at the time the petition was filed, and until, by the judgment of the court in the same proceeding, the title became vested in Land in severalty. The court was requested so to instruct the jury, but declined, and the counsel excepted. If Robert Land was a tenant in common with the plaintiff below, of the premises in question, he had the same right to take the hay as the plaintiff, and if the defendants, in taking the hay, acted under the directions of Land, trespass will not lie against them. I think the judgment of the court of common pleas should be reversed, with costs, and a new trial ordered. As to the right of the plaintiff in error to costs, see Laws of 1844, ch. 312, § 2; 3 R, S. 3d ad. p. 709, § 40,.