Bradshaw v. Callaghan

The Chancellor. The writ of error, in this causey — 562 — has brought up from, the supreme court a judgment ... v, m partition. As to the first error assigned. At common law, coparceners only could have writ of' partition. They were held to be in the estate, on the seisin of their ancestor, and all the coparceners, collectively, constitute one heir. (Co. Litt. 131.) Hence it was deemed essential to set- forth the seisin of their ancestor, under whish they derived their right, as well to entitle them to til; writ, as to show their respective proportions. The statute of 31 Hen. VIII. c. 1. extended the remedy to tenants in common and joint tenants, and in that statute, rights, title, and interest are used as synonym'a." Our statute directs, that the party applying for partition, shall set forth the rights and titles of all the parties ; and this, it has been contended, imposes it on the party applying for partition, to set forth the right and title at large, of all the parties to the suit. This statute must receive its construction from the terms in which it is conceived, expounded by the ordinary use to which those terms, in legal phraseology, are applied. If that application has been uniform and durable, it will certainly aid in ascertaining the intent of the statute. In an action for an annuity, it is not necessary to set forth the title and estate of the grantor, but only that he did grant it. (Heath’s System of Pleading, 5. Co. Litt. tit. Annuity, 49.) In replevin, a defendant may avow, as tenant to I. S. who was seised. (Noy, 70.) N feoffee may plead that A. was seised, and did enfeoff him. (Heath’s System of Pleading, 80. 18 Edw. IV. 1. 26.) In ejectment, seisin and a descent cast axe, prima facie, evidence of right. In an action for a rent-charge, the form of deducing the defendant’s privity is, that the premises on which the rent was reserved, came- to-his hands by assignment,-, without showing h.ow; and in ejectment, the proof that the. defendant — 563 — Folds under the same title with the lessor, entitles him to commence his deduction from the common source. When partition could only be had by coparceners, they were conusant of each other’s right; and thus privity attached with, and constituted, an essential part of their estate. It is not so with tenants in common. They have a unity of interest, but may be in by totally different titles. All that the petitioners were bound to maintain, as to the defendants, was, that they held with them, as tenants in common, the proportion of the estate described in their petition. In analogous cases, it does not require that the title should be spread on the record. The words of the statute may as well be satisfied, by alleging the seisin of all the parties, of their different portions simply, which constitutes their title, as if it were traced from the state or the crown. It would be surcharging the record with useless matter, and impose on the plaintiff" in partition, in all cases, a hazardous, and, in many cases, an impracticable task, to compel him to set forth his title beyond his own seisin, as he must do it correctly, or fail in sustaining his action. The general allegation of seisin, I therefore think, was well enough. As to the second error assigned. If my reasoning on the first point is correct, it concludes to this; for if the allegation that James Bradshaw, the ancestor, was seised, was not essential to the maintenance of the action, then it is surplusage, and may be rejected as such, and of course, cannot vitiate. The partition may be maintained on the seisin of the parties generally; and that is alleged with sufficient certainty. So as to the third point, as to purchasers; for whether acquired by descent or purchase, is perfectly immaterial, ii the seisin entitles the party to maintain a writ of partition. As to the fourth and sixth errors assigned, it is apparent from the record, that the dower of the widow was left in statu quo. That she is not included in the — 564 — description of joint tenant, tenant in common or coparcener, to which classes only the statute extends is certajn. She is of .consequence pot affected by the partition. She holds by title paramount, and the partition >vas confinec¡ to the inheritance .only; and so was. the opinion of the supreme court, (5 Johns. Rep. 80.) that the partition was no bar to her recovery. The dower, theretore, affected every part of the land .equally. So in England, the word tenet, in a writ, always implies tenant of the freehold ; and if one be disseised by another, no writ of partition lies. ( Vin. Abr. tit. Partition, (S.) pl. 2.) So when dozuer was brought against several purchasers, the court directed them to be charged proportionally ; Freeman, 227. pl. 234.) for, in equity, they must be .equally charged, and a writ of dower will lie against a tenant in common, before partition, made, (3 Lev. 84.) It appears to me, from these authorities, and the general doctrine respecting partition, that a tenant in common pt the inheritance nr ay maintain partition, notwithstanding a particular estate is still outstanding. The actual assignment of dower might have required a different modification among the parties to the partition, had the assignment preceded it. But here it must have been subsequent, and when the partition was made, it was uncertain, whether it would ever be demanded. If it was, it might be a question, whether all the parties holding under such partition could be included in one prmcipe. If they could not, each must respond only for the portion he held. If they could, and the assignment affected their interests, unequally, they had a remedy in chancery, The fifth point went to. the exclusion, of Mary Bradshaw's share the omission of which, it was alleged, was not conformable to the judgment or award of partition. The judgment and award are, however, complete, as to the parties who held the inheritance, and severs their — 565 — ¡rights, subject to the dower, and within the foregoing reasoning. _As to the seventh error; the judgment against Mary Bradshaw, for the one third of the costs, is clearly erroneons; for as her rights were not affected by it, she could not be subject to costs ; and it may well be doubted whether she was a necessary party at all. It has-been attempted to be shown, by affidavit, read without notice to the opposite party, that she has died during the pendency of this suit in error. In England, the death of a tenant does not abate a suit in partition. Here, it may be otherwise; but the fact has not been regularly brought up, and it cannot be necessary to examine it. This, however, .only affects a part of the judgment; and this court are required not only to reverse an erroneous judgment, but to render such a judgment as the court below ought to have done. In this case, if the judgment with respect to Mary Bradshaw should be deemed erroneous, and if this affected the whole judgment, so as legally to impose it on the court to reverse it, or so to modify it, in foto, as to render a judgment according to the rights and justice of the case, it must affect all the parties to the suit below, all of whom are. not here; for, to render complete-justice, the judgment of the court ought to exempt the widow from the payment of the costs adjudged against her; and to apportion it among the other parties in proportion to their several interests. But James Bradshaw and John Bradshaw were also defendants in the court below, who, it seems to me, as they have not joined, ■ought to have been summoned and severed; for if that is not the rule, the plaintiff in the court below, though the judgment should be affirmed, might be harassed and delayed by several successive writs of error. (2 Bac. Abr. 461.) But so far as respects the costs adjudged against Mary Bradshaw, she and the defendants are the only persons interested; for the judgment is, “ that the said Mary Bradshaw pay to the said Patrick Callaghan and — 566 — Ann his wife, eighty dollars and ninety-six cents, being *e ProPortion of the whole costs and charges attending t^le Parttáon aforesaid, according to her right in the lands and tenements afo'resaid.” That a judgment may be reversed in part, and affirmed in part, where different matters of the judgment are distinguished, is clear. (4 Burr. 2021. 1 Str. 188. 2 Str. 934. 1 Salk. 312.) Here there is a distinct judgment; and I am, accordingly, of opinion, that the judgment, as to the costs, adjudged against Mary Bradshaw, be reversed, and that the plaintiffs, as to the residue, go without day. This being the unanimous opinion of the court, it was thereupon ordered and adjudged, that the judgment of the supreme court be reversed, so far forth as respects the costs thereby adjudged to be paid by Mary Bradshaw to the said Patrick Callaghan and Ann his wife, and that as to the residue of such judgment, that the plaintiffs go thereof without day; and that the record be remitted, . &c.