Ballou v. Hale

Bellows, J. The partition by parol was not valid, notwithstanding the division line was marked and monuments set up, and notwithstanding the parties for several years occupied in accordance with the division'so made. This is too clear to need the citation of authorities, and the doctrine is not controverted by counsel. It is recognized also by the recent decision of this court in Wilder v. Russell, Cheshire Co. Dec. Term, 1866. It is also well settled in New Hampshire, that the conveyance by one tenant in common of a part of the land by metes and bounds, is not valid as against the other tenant in common, unless his assent to it is manifested by some proper act. French v. Lord, 1 N. H. 44; Jeffries v. Radcliff, 10 N. H. 242; Great Falls Co. v. Worster, 15 N. H. 449; Whitton v. Whitton, 38 N. H. 133; Martin v. Collister, 38 N. H. 455. What shall constitute a sufficient assent by the co-tenant is not well defined, but it is held in Great Falls Co. v. Worster, before cited, that the absence of objection is not proof of dissent, and so is Duncan v. Sylvester, 24 Maine 482. Upon the same principle an occupation in accordance with such division -is not such assent; although if continued for twenty years, and under such circumstances as to make it adverse, it would establish the title; but here there was no such occupancy. In Porter v. Hill, 9 Mass. 34, it was held that a parol partition was void, notwithstanding a several occupancy conforming to it, and in . Wilder v. Russell, cited before, there was such occupancy. The doctrine that a conveyance of a part of the common property by one tenant is invalid, as against the other, is based, in all the cases, up [351] on the fact that if sustained it would affect the rights of the other tenant in respect to partition; compelling him to take a share in each of several parcels of the common property, such as his co-tenant might choose to mark out, instead of a share of the whole; and this is the view taken in other States, as in Bartlett v. Harlow, 12 Mass. 348, which is a leading case; Peabody v. Minot, 24 Pick. 329; Duncan v. Sylvester, 24 Maine 482; Griswold v. Johnson, 5 Conn. 563; Smith v. Benson, 9 Vt. 138; 4 Kent’s Com. sec. 368, and cases cited; 1 Wash, on Real Prop. 410, and notes. At the same time it is well settled that such a deed is not void or wholly inoperative, as respects the grantor; but will be effective to convey such land, if the other tenants shall afterwards, by release or other proper act, assent; or there be a subsequent valid partition by which the land so granted is assigned to the share of the grantor. French v. Lund, 1 N. H. 42; Varnum v. Abbott, 12 Mass. 478; Brown v. Bailey, 1 Met. 254; Nichols v. Smith, 22 Pick. 316; Souther v. Porter, 27 Maine 405; Cox v. McMullen, 14 Gratt. Va. 82; 19 U. S. Dig. 415, sec. 24. Such a deed, then, can be avoided only by the other tenants, but is good against the grantor and his heirs, and may and will operate, so far as it can, without prejudice to the co-tenants. The question, then, arises, whether the grantee in this case acquires by this deed the right which his grantor before had to the possession of the land so granted, and the crops upon it. So far as regards the right of the other tenant to partition, it is clear that he cannot be affected by this conveyance, but has a right to a moiety of the entire land. If, on the other hand, he might stand in the place of his grantor, as to possession and profits of .the land granted, without prejudice to the other tenant, it would be in harmony with the doctrines under consideration to hold that he might do so. If, instead of an attempt to convey the whole title to the land in question, the grantors had licensed the defendant to enter upon this land, and do just what they might have done, and no more, it would be difficult to see how the plaintiff could have been prejudiced by it. If held to be valid, it certainly could not affect the plaintiff’s right on partition, to have assigned to him a moiety of the entire property, and it is upon the injury to the other tenants in the matter of partition that the rule is based. If, then, such a license would be valid, an instrument conveying all the interest which such tenant had, and which would clearly bind him, might well be held to operate to the same extent, and give to the grantee the same right, in respect to the possession and profits of that tract, so long as the other tenant did not choose to ask for partition, as the grantor had himself. Before such grant the grantor was equally with the other tenant entitled to the possession and profits of the entire land; after the conveyance, as the grantee acquired no interest in the other portion of the land, the grantor and grantee together, would be entitled, as respects the [352] tenant, to the same share of the profits, as if the grantor had conveyed an undivided share of his interest in the whole land; unless, by an agreement between the grantee and the other tenant, the grantee was allowed to have exclusive possession of the parcel conveyed to him, in which case he would be entitled to hold the whole of the profits of that parcel. Upon this ground the defendant has received the profits of the parcel conveyed to him, for several years, and so long as the arrangement by which this several occupation was had was permitted to continue, the defendant must be regarded as rightfully in the receipt of those profits. 4 Kent’s Com. sec. 370, and cases cited. In the leading case of Bartlett v. Harlow, 12 Mass. 348, the petitioner for partition acquired his title by extent of an execution upon part of the land held in common, and the court hold that he is not entitled to partition, but say "it does not follow that he is not now entitled to a just proportion of the rents and profits of the land, if they can be taken in such a manner as not to infringe the right of the respondent to his share, nor to disturb him in the enjoyment of an undivided moiety of the whole landand the court evidently makes a distinction between what may prejudice a co-tenant in respect to his estate or inheritance, and that which may affect the taking of the profits of the common property. See p. 252, and cases cited. In Tookie’s Case, 2 Co. Rep. 68, a, it is laid down that one joint tenant cannot prejudice his companion as to any matter of inheritance or freehold, but as to the profits of the freehold the one may prejudice the other, for there is a privity and trust between them, and therefore if one takes all the profits, there is no remedy for the other, for it was his folly to join himself in estate with such a person- as would break trust, to remedy which an action of account is given by statute of 4 Ann. ch. 16, although the defendant was not actually bailiff. So is Reed v. Tucker, Cro. Elis. 803. This distinction is recognized in Bartlett v. Harlow, 12 Mass. 352, before cited. In Rising & al. v. Stannard, 17 Mass. 282, it was decided that one tenant in common may make a parol lease of a specific portion of the land, and that the other could not maintain trespass quare clausum fregit against the lessee. The court say that all the tenants in common haye an equal right to the possession of the land held in common, and may occupy it themselves; or any one may authorize a stranger to occupy under him. It is true that a grant of a part of the common property by a tenant in eommon has been held to be voidable by the co-tenants. But the ground of that decision does not affect the present question. A parol lease from a tenant in common does not affect the estate of his co-tenant, nor can it have any legal operation to prevent the co-tenant from having partition, and holding in severalty his full share of the common property. In Bacon v. Bowdoin & al., 2 Met. 591, it was held that where one tenant in common of land conveys a parcel thereof by metes and bounds, and takes back a mortgage and assigns it, the assignee, if he has no claim to the land under the other co-tenant, cannot resist the right of [353] tbe mortgagor’s lessee for years to redeem that mortgage, it being held that this conveyance was valid against all but the other co-tenants. If, then, a lease by one tenant in common of a portion of the common land is good to entitle thg lessee to the rights of possession before held by the lessor, we see no reason for holding that a deed of the whole of a specific portion of the property should not be effectual to give the grantee what the grantor could, in the form of a lease, rightfully convey ; and that is the mere right of possession in common with the rest. Upon these views, holding the partition to be invalid, we think the defendant must be regarded as standing in the place of his grantors, in respect to the possession and profits of the parcel of land so granted; although the conveyance can have no effect upon the rights of the other tenants in common in respect to partition. The remaining question, therefore, is, whether one tenant in common can maintain trover for the crops, or any portion of them, taken and carried away by another, that is, for merely withholding them and refusing to allow the other to participate in the use of them. The case of Carr v. Dodge, 40 N. H. 404, seems to be decisive, that the action cannot be maintained. In that case the plaintiff’s intestate died owning a share of the crops in possession of defendant, who owned the other part, and he refused to deliver to the administrator any part of them though duly demanded, and it was held that trover would not lie. This is well sustained by authority. 1 Ch. Pl. 10th Am. Ed. 79, 156, 172 and 179, and cases cited. Had the property been destroyed by defendant, or sold and converted into money, an action might ordinarily have been maintained ; but nothing of that kind exists here. Under the statute assumpsit might have been maintained, perhaps, unless it had been found that defendant was by agreement taking the crops upon the land assigned to him by the defective partition. There must, therefore, be judgment against the plaintiff.