Hatch v. Partridge

Bell, J. This case has been once considered by the Superior Court, and it was then held that “ by the will the devisees were ■ made tenants in common. The devise to Leonard and Alpha was on condition that they should take Ira, and carry on his share, and see that he had his support out of it during his natural life. They had the right to the possession of it during his life. They were bound only to furnish him a support. They could not convey his interest, but only their own. Leonard Hatch undertook to convey the fee [of the whole,] to one third of which he had no title, and a recovery was rightfully had against him by Stephen Partridge for the breach of his covenants. Having by the will an interest in Ira’s share during his life, and a right to the possession and profits of it, they could convey that interest, sub-iect to whatever charge upon it was created by the will.” 8 Poster 83. It did not appear in that case that the brothers had not performed the condition prescribed by the will, and the case was sent to a new trial on that ground. It now appears that the condition was never performed, and that Stephen Partridge has recovered in his action, for the breach of the covenants in Leonard’s deed, one third of the consideration paid, and the interest. It may be convenient to consider: 1. The effect of Partridge’s recovery against Leonard upon his title to Ira’s shares, for life or otherwise. 2. The effect of the partition in the Probate Court upon any claim of Partridge to Ira’s share. 3. The effect of Partridge’s entry under his deed from Leonard, to make him a trespasser as to Ira. 4. Prom what time Partridge is responsible for the mesne profits. I. The rule of the Revised Statutes, (ch. 129, sec. 6,) C. S. 288, is that “ a conveyance made by any person having a limited interest in any estate, purporting to convey a greater interest than he possessed or could lawfully convey, shall not work a forfeiture thereof, but shall pass to the grantee all the estate which he could lawfully convey.” Under this rule Partridge might — 155 — have claimed and beld the share of Ira for his life, subject to the burden of carrying it on and furnishing him a support, unless the condition should be deemed personal to the devisees, and such as they alone could perform. See Flanders v. Lamphear, 9 N. H. 201. By bringing his action against Leonard on his covenants, and claiming to recover the whole consideration paid for the share of Ira, he has refused to take the limited and incumbered interest of Leonard, and has rescinded the entire contract as to that share. Having alleged by his writ that nothing passed, and that the covenant was wholly broken as to that third of the estate, he has estopped himself to claim any interest in that share, and between him and Leonard the property is' revested in Leonard, and any person not himself entitled to take advantage of the estoppel as such, may yet show that by the effect of the estoppel, as between the parties to it, Partridge has not now, and has never had, any interest in the estate which Leonard and Alpha had by the will in Ira’s share. II. By the decree of the Probate Court setting off to Ira the tract of land now in question, of which proceeding it is admitted that Partridge had sufficient notice, and from which no appeal was taken, Partridge was forever barred from claiming any interest in the land thus set off to Ira. It was an express assignment to him of the entire fee. And it was equally conclusive upon any claim of Leonard, the brother, who was personally notified of the claim, to have set off one unencumbered third in fee, and who set up no claim, made no objection, and took no appeal. By the effect of these proceedings these several parties are barred from claiming the interest given by the will to Leonard and Alpha in Ira’s share; and we may, therefore, regard that interest as extinguished. III. Partridge entered under a deed of the whole, and claiming the whole; but the deed, as he is now bound to admit, conveyed no interest, right or title whatever in ¿he share of Ira. The general rule is, that one tenant in common can not maintain trespass against his cotenant for entering and occupying the whole; because he has a right to enter upon and occupy every — 156 — part, and because the law regards him as entering and occupying for the benefit of his cotenants as well as himself, and as in truth a bailiff for his cotenant. Under our law this rule is not necessarily productive of any wrong to the cotenant who is excluded, because it is provided by the Revised Statutes, ch. 180, sec. 6, Comp. Stat. 459, sec. 7, that “ if any cotenant of any real estate shall hold the exclusive possession and income thereof, against the will and without the consent of his cotenant, the cotenant so excluded may, in an action of assumpsit, recover of the person holding such possession the full amount of all damages he may have sustained thereby.” It then becomes a question whether the. position of this case is such as to make it an exception to the general rule, that a tenant in common can not maintain trespass against his cotenant. Upon this point we are referred to the cases in Massachusetts of Bigelow v. Jones, 10 Pick. 164, and Kittridge v. Locks and Canals, 17 Pick. 264. In the former it was held, that where a party enters upon land of tenants in common, under a deed of one of the cotenants purporting to convey the whole, and claiming, not as a tenant in common but as owner of the whole, he is to be deemed a stranger, and his acts amount to a disseizin of the other cotenant. In the latter it was held that where one tenant in common of land conveys the whole estate in fee, with covenants of seizin and warranty, and the grantee enters and holds exclusive possession thereof, such entry and possession are a disseizin of the cotenant. No direct authorities are cited for these decisions in the case of tenants in common. Those cited, Stearns R. A. 12; Warren v. Child, 11 Mass. 225; 5 Greenl. 182; Proprietors v. Laboree, 2 Greenl. 275, only show that an entry under a deed which conveys no title is a disseizin of the owner; still the decisions seem to have the support of good sense, inasmuch as they hold that the party who denies t^e tenancy in common, when he commits a wrong, shall not be permitted to assert it for the purpose of protecting himself against the consequences of his injustice. The — 157 — case of Erwin v. Olmstead, 7 Cow. 229, tends to support the same doctrine. Admitting that the entry and occupation of Partridge was a disseizin of Ira Hatch, yet it is generally true that a disseizee cannot maintain trespass for the acts of the disseizor, while the disseizin continues, until the seizin and possession are regained by action or entry. Bigelow v. Jones, 10 Pick. 164; Lyford’s Case, 11 Co. 51; Com. Dig., Tres. B, 2; B, 3; Wendell v. Blanchard, 2 N. H. 458. But here the possession and seizin are revested in Ira by the decree of partition and the entry of his guardian, and the action may well lie, upon the principles of the decisions in Massachusetts, before cited. Besides, it is not necessary here, in order to maintain trespass, that the plaintiff should show an actual entry. If he shows a title in himself, an entry, where necessary at common law, will be presumed in trespass, as it is in all real actions. Winkley v. Hill, 6 N. H. 391; Proprietors v. McIntire, 6 N. H. 527 ; Chandler v. Foster, 1 Foster 287; Warren v. Cochran, 10 Foster 379. No exception is admitted, that we are aware of, even in the case of an actual disseizin. 10 Foster 379. This action is of the nature of trespass for mesne profits ; 6 N. II. 392 ; which may be maintained by one tenant in common who has recovered in ejectment against his cotenant. Goodtitle v. Combs, 3 Wils. 118; Cutting v. Derby, Black. 1077; Ad. Eject. 382. It is not necessary at common law to show a writ of possession executed. It will be sufficient if the party has entered under his judgment. Jackson v. Combs, 7 Cowen 36; Calvart v. Horsefall, 4 Esp. 167; Thorp v. Fry, B. N. P. 87; 2 Selw. N. P. 673, note ; and an entry under a judgment, or decree of partition of a competent court, must be as effectual as a judgment in ejectment; 6 N. H. 391; if any entry should be required here to support this action. After a reentry the law supposes the freehold and possession to have all along continued in the disseizee, and he may maintain trespass for the intermediate damages, lb.; B. N. P. 88 ; Bac. — 158 — Ab. 554 : 20 Vin. 465; Holcomb v. Rawlins, Cro. El. 540; Lyford’s Case, 11 Co. 11. The trespass is alleged to have continued from January 1, 1837, to October 1, 1847, and the entry by the guardian was about the close of this period; and this renders it material to enquire at what time the plaintiff’s title to the actual possession, without regard to the brother’s possessory right, took effect. This depends on the nature of the provision by which theif interest is terminated. In form and terms it is a condition. A condition requires an entry to divest the estate of the tenant, and as to this point the entry of the guardian would have no retrospective effect. But notwithstanding its form, it is not a condition. The benefit of a condition must be reserved to the grantor and his heirs, and not to a stranger. Litt., sec. 347 ; 2 Cruise Dig. 39. Whatever Ira takes under the will, he takes as purchaser and not as heir, and he is therefore a stranger. It has, however, been long settled that where in a devise a condition is annexed to a preceding estate, and upon the breach or non-performance thereof the estate is devised over to another, the condition shall operate as a limitation, and upon the breach or performance of it, as the case may be, the first estate shall ipso facto determine and expire without entry or claim ; the limitation over shall thereupon actually commence in possession, and the person claiming under it shall have an immediate right to the estate. 2 Black. Com. 155; 2 Cruise Dig. 281; 4 Kent Com. 127; Com. Dig., Condition, T. Such was the effect of the will in this case. The estate of Leonard and Alpha was subject to a conditional limitation, to continue so long as they should carry it on and see that Ira had his support out of it. With this provision they never began to comply, and their interest at once ceased, so that when they conveyed to Partridge they had no interest in Ira’s part, and the rights to the property then stood precisely as they would have done if the devise of Ira’s part to his brothers to carry on — 159 — bad never been made, and Ira may recover in this case as if he bad been tenant in fee simply. Agreeably to the provisions of the case the question of damages must be submitted to a jury.