Adam v. Ames Iron Co.

Storrs, J. We do not consider it necessary to examine the question as to the title to the premises sought to be aparted, which has been raised before us, because we are of opinion that this bill should be dismissed, on the ground that, when it was brought, the plaintiff was not in possession óf said premises. It was an established rule of the common law, by which the writ of partition would lie only between coparceners, that the plaintiff must be in possession, or seized, of the land when the writ was brought. Co. Lit., 167, a; and since the remedy by partition has been extended to joint tenants, and tenants in common, the same rule has been uniformly adopted, whether the remedy was sought by writ or bill in equity. 1 Sw. Dig., 103. Our statute, authorizing the superior court, as a court of equity, to order partition of real estate, held in joint tenancy, tenancy in common, or coparcenary, does not introduce any different rule on this subject. The committee, in this case, find the following facts. In 1790, S. Forbes and N. Church became tenants in common, in fee, of the premises described in the bill. In 1836, Church died, having had, for many years before his death, the charge [234] of said premises, and rented the house standing thereon, and cultivated and occupied the land; but there was no evidence to show -whether he had ever accounted to Forbes for his proportion of the rents and profits, or that he had ever claimed the sole title, or denied the title of Forbes to the premises. The whole of the premises was inventoried, and distributed, as the estate of Church, to his heirs ; and in 1837, after said distribution, Oliver Ames contracted, by parol, with the distributees, for the purchase thereof—under which contract, said Oliver immediately went into the possession and occupancy thereof, and he, and those claiming under him, including the Ames Iron Company, defendants in this suit, in whom all the title of Church has become vested by regular conveyances, have ever since remained in the sole and uninterrupted possession of the premises, the purchasers and grantees thereof having always claimed the sole title, and denied the right of all others thereto, unless the agreement of July 23, 1844, to which we shall hereafter advert, constituted an admission of the same. In July, 1844, the heirs of Forbes never having, since his death, which occurred in 1827, occupied or made any claim to the premises, and the plaintiff) having no knowledge that the title of said heirs to an undivided part thereof was ever questioned, or denied, by any person, the said Oliver Ames commenced the erection of a dwelling-house on the premises, when the plaintiff, one of those heirs, notified him that he, and the other heirs of - Forbes, had a right and title thereto, and requested him to acknowledge that right, or to pay them some rent, if it was but a pepper-corn, which the said Oliver refused to do, claiming that he had bought the land of the heirs of Church, who claimed to be the owners of it, and that by purchase, he, the said Oliver, had acquired the title; which was the first actual notice he had received of any claim to the premises by the heirs of Forbes, or the plaintiff. With respect to the agreement of July 23,1844, we do not think that it changed the character of the possession of [235] Oliver Ames, or constituted any admission by him of a title in the heirs of Forbes. Its only object was, to provide that, if there should be an adjudication that the heirs of Forbes and Church owned the land as tenants in common, the said Oliver, who claimed under some of the heirs of Church, should not lose his house placed on it, but that the land, on which it stood, should, on a partition, be set to him. Whatever may have been the character of the possession of the premises, prior to July, 1844, when the heirs of Forbes requested Oliver Ames to recognize their title, it is clear that, since that time, there has been a constant actual ouster of those heirs by the said Oliver, and the Ames Iron Company claiming under him, who have, from thence to the present time, been in the open, exclusive, uninterrupted, and adverse possession of the premises, expressly claiming the sole title in themselves, and denying the title of said heirs. We concur fully with the authorities which determine that, from the peculiar and intimate connection existing between tenants in common of real estate, the proof of an ouster, by one of another of them, ought to be of the most satisfactory nature; but in this case, if the fact of such ouster is not positively found by the committee, the evidence of it is strong enough to satisfy the strictest requirements, on a question of this kind. As, therefore, the plaintiff was not in possession of the premises when this bill was brought, it should be dismissed, and the superior court is so advised. In this opinion, the other judges, Waite and Hinman, concurred. Bill dismissed.