Mussey v. Sanborn

Parker, C. J. This process is given by the statute to allpersons interested. The respondent contends that it was the intent of the legislature to confine it to those whose estate is an inheritance in fee, or at least a freehold, in the premises. But we see no reason for thus restricting this beneficial process. A lessee for years of an undivided part may have as great an interest in procuring a severance as a tenant for life ; and although inconveniences may arise from allowing lessees for a short term to avail themselves of this provision, yet, on the other hand, as estates for years may be much more durable than mere freeholds, it would be dangerous to establish a principle which should except such estates from the operation of the statute. If a discrimination is necessary between estates held by long and short leases, the legislature is alone competent to make it. If it were required to search for the intent of the legislature, in order to fix a meaning to the general term * made use of, it would be only necessary to recur to the law as it stood before the passing of the statute. By the common law, the writ of partition would lie only between coparceners whose estates were equal. But, by the statute of 31 Hen. 8, c. 1, all persons having estates of inheritance were allowed [144] the writ. By the statute 32 Hen. 8, c. 32, the privilege was extended to tenants in common, or joint-tenants of estates for years only. Thus stood the law when our ancestors migrated to this country; and the provincial legislature, by the statute of 5 W. & M.. c. 19, gave the writ of partition to all joint-tenants and tenants in common, without regard to the duration of their estates. Then came the statute of the commonwealth, 1783, c. 41, entitled, “ An act for the more easy partition of lands and other real estate; ” and this gives the right of severance to all persons interested with others in such estate— without doubt intending to embrace all the cases before provided for, in relation to writs of partition, within those very general terms. This historical account of the law on this subject shows, very clearly, that estates for years, as well as other estates, are subject to the provisions of our statute. Judgment on the verdict.