Johnson v. Tilden

The opinion of the Court was pronounced by Hutchinson, C. J. The Court consider, that the plaintiff made out a sufficient title to this land, if it were then [431] Undivided land, and the defendant were a stranger to all title to the undivided lands in town. It is no matter whether his title extended to half, or any less quantity of the land, if it extended over the whole. That entitled him to recover the whole, and put out the defendant, and take and hold possession for himself and his cotenants in common, whoever and wherever they might be. This is clear in principle; and decision, to that effect, have been often made in this state. The title of each tenant in common necessarily extends over the whole land thus holden in common, and, not only can he sue alone, and oust any intruder, but, at common law, he must sue alone. Hence the practice in England, that each gives his separate lease to some third person, who becomes plaintiff, or sues on the demise of these several tenants in common. In this view there is no importance to be attached to the evidence of the plaintiffs’ pitch of this land to the rights* he claimed to own. It was not admitted as of any avail, otherwise, than as sanctioned by the acquiesence of those, who had a right to contest its legality. With regard to the paper, found in the office of the proprietor’s Clerks, called the manuscript paper, which was objected to by the defendant; we consider, that the case does not show sufficiently how this paper came into the office, or why it was there, or for what purpose it was made, or whether it was ever sanctioned by the proprietors, so as to become valid for any purpose, to entitle the plaintiff to read it to the jury. The case shows it not admitted as record evidence ; but it was submitted to the jury to decide, from all circumstances in evidence, whether this,- or the one differing from it only as to the location of this lot, but which was in the book, used as evidence, was the one, which the proprietors themselves sanctioned as of binding force. Yet the Court consider, that the case does not show sufficient evidence of its validity to admit it to be thus submitted to the jury. The Court also consider, that the instructions to the jury with regard to the tenancy in common were incorrect, so far as related to the defendant’s having no right as tenant in common under the deed from Burton. It appears by the case ,that, when Burton conveyed this lot to Tilden, [432] he, Burton, owned the whole right of Long. This inclucL ed the after division. Now, the Court are of opinion, that, "if this lot were not the second division lot of Long’s right, yet, if it was undivided land, it was as much subject to Burton’s after division, as that of any other right, and that Burton’s deed to Tilden conveyed to him whatever interest ho had in this lot; which was a tenancy in common, to the amount of his after division. Were the plaintiff’s pitch legal, to effect an application of this lot to his after division, it.would only make him tenant in common with all those proprietors, who had not obtained their portion of land to supply their after division. Moreover this deed to Tilden was prior to the plaintiff’s pitch; and nothing appeared in the case, that the right of Long has ever had its after division. This entitled the defendant to remain in possession, and the verdict most favorable to the plaintiff, under these circumstances, would only admit of his recovering, to be let in as tenant in common with the defendant, Marsh, for defendant. CoUamer, for plaintiff. A further question is here raised, whether the plaintiff if all other objections were removed, could recover at all, without proving a demand to be let in as tenant in common, before the action was commenced ? We entertain no doubt upon this point. The deed from Burton to Tilden does not convey some undivided portion to hold as tenant in common, but conveys the whole lot as owned in sever-alty ; and describes it as having been severed to the right of Long as his second division. And the defendant has taken possession and holds it thus in severalty; and claims to hold the whole in his own right. This is a sufficient ouster, to render the defendant liable to a suit by his co-tenant, without any previous demand. On account of the errors, thus noticed, in the decisions of the County Court, and in their instructions to the jury, judgement is reversed, and a new trial is granted.