McCaul v. Kilpatrick

CuReier, Judge, delivered the opinion of the court. This is an action of trespass quare clausum. It appears from the agreed case which was read in evidence to the jury that the plaintiff acquired from the defendant, through several intermediate conveyances, title to one-fourth of a twenty-acre tract of land ; the particular fourth not being specified in the conveyances. The agreed case further shows that the plaintiff, subsequently to his acquisition of title, “ procured the county surveyor, and marked out and selected five acres in the southwest corner of said twenty acres, in the absence and without the knowledge or consent of the defendant.” After this the defendant entered upon the five acres so selected and removed some fence rails, and that is the trespass complained of. [437] The case shows that the parties were tenants in common. The original conveyance of one-fourth of the twenty acres, without designating by metes and bounds, or otherwise localizing the part conveyed, vested in the grantee the title to one undivided fourth of the whole tract, as tenant in common with the grantor; and those who subsequently acquired the grantee’s title assumed the same relation to the remaining three-fourths of the title as the original grantor originally held. (Pipkin v. Allen, 29 Mo 229; Adams v. Frothingham, 3 Mass. 352; Jackson v. Livingston, 7 Wend. 136; 1 Washb. Real Prop. 563, 8th ed.) The parties being tenants in common, how could the estate be partitioned between them ? At common law, one tenant in common could not enforce a division of the estate against his co-tenant, in opposition to the latter’s will. In England a partition is effected through chancery, but in this country the subject is generally regulated by statute. (1 Washb. Real Prop. 580.) Our statute points out the steps to be taken in effecting the separation of joint estates. But the plaintiff claims the right to make partition without legal process, and without consulting his co-tenant. This supposed right is founded on the defendant’s original deed, which failed to locate the fourth part of the twenty acres in a body by itself. The grantee, it is therefore claimed, and those claiming under him, acquired the right to locate the five acres in any way most advantageous to them, 'and upon the principle that a deed is to be construed most strongly against the grantor, and also upon the ground that where a deed may inure in different ways the grantee may take it in that way which shall be most beneficial to him. Jackson v. Hudson, 3 Johns. 374, and Jackson v. Blodgett, 16 Johns. 172, and other similar cases, are cited and relied upon as supporting the views contended for. The principle declared in these cases is correct, but has no application to the case at bar. The deed in question is not open to construction. There is no doubt about its meaning or effect; nor can it inure in different ways. The doctrine of inurement has no application to the instrument. The deed vests in the grantee directly an inde [438] feasible title in fee simple to one undivided fourtli part of tbe twenty acres, as a tenant in common with the grantor. In Jackson v. Livingston, 7 Wend. 136, it was decided, where a deed granted 600 acres of land, to be surveyed or taken off from a larger tract, and by the terms of an instrument referred to in the deed, the tract was to be divided into lots of 100 acres each, and an election of lots was given to the grantees, w7hich they subsequently made, and followed up by possession, that such election and possession under the deed operated as a parol partition, although the grantees were tenants in common with the owners of thelarger tract. But that is not this case. The radical difference between the two is sufficiently manifest not to require pointing out. The view vre have taken of the case disposes of it, and renders unnecessary any reference to the other points noted in the briefs of counsel. It is not claimed that one tenant in common can maintain trespass against his co-tenant for an entry upon and enjoyment of the common property. (4 Kent, 421, 10th ed.) The judgment will be reversed and the cause remanded. The other judges concur.