Lloyd v. Gordon

The Court were of opinion, that the Jury might premia e a patent, if the possession has been held under the certificate of survey. It was proved in this cause, that the plaintiff and defendants had title to the lands in dispute, as tenants in common. That as to the lands for which the defendants took defence upon the plats returned in the cause, pari* of them had been held by actual enclosure and exclusive occupation, for more than forty years, and an exclusive cutting of timber in the other part not enclosed, during all the time aforesaid. The defendants denied the right of the plaintiff antecedent to the bringing of the action ; but it was proved, that those under whom they claimed, admitted the plaintiff’s right to an' undivided moiety, within twenty years before the suit was brought, and whilst they held the possession now set up by the defendants.

(See further facts in Mr. Cooke’s argument. The defendants’ counsel prayed the direction of the Court to the jury, that if they are of opinion there was an ouster of the plaintiff, and an adverse possession held by the defendants, of the lands in the declaration mentioned, or of any part thereof at. the time of bringing this action, then, as to such parts, they must find a verdict for the defendants. Cooke, for the defendants. Partition is a possessory action, and will not lie unless the party is seised.

The declaration states that the parties are seised in common of undivided moieties, which is denied by the plea, and makes the very point in issue. It is incumbent on the plaintiff to show a seisin and possession in the part ²⁵⁶ claimed by the.defendants. Fitz. N. B. 142. note. 2 Bl.

J Comm. 191. If one parcener disseise another, there can be no pardtion during the disseisin, but the party ousted must first bring his ejectment to recover possession. Co. Litt. 167. a. Dyer, . 79. b.

If parceners convey, the purchasers are tenants in common; Co. Litt. 167. b. 175. a. and the privity is destroyed between them. But this does not alter the case, in any manner, in favour of the plaintiff, for if one tenant in common ousts his companion, he may bring an ejectment. Litt. s. 322, 323. And it is determined, that the confession of lease, entry and ouster is sufficient, without proof of an actual ouster. 3 Burr. 1895.

Co. Litt. 200. b. The plaintiff has shown no seisin in common with the defendants, of the lands they claim, and if he was hot seised in common at the time of the issuing of the writ, he is not entitled to partition. Tenants in common being equally entitled to undivided parts of the whole, the entry of one in the whole, who has a right to part in the whole, will not amount to a disseisin of his companion. As against strangers, the seisin of one is the seisin of all.

But if one tenant in common enters into the whole generally, and makes a feoffment, it is a disseisin, because he thereby denies the right of the other. Yin. Partition, 175. So if he enters and ousts his companion, it is a disseisin. 1 Bl. 675.

Because, in those cases, his companion might bring an ejectment at common law, and recover his ^undivided portion. Litt. s. 322. But it was held' at common law, that the bare entry and receipts of the rents and profits by one tenant in common, was no disseisin of the other, without an actual ouster, or some act of notoriety, denying all right in others. The reason was, because, at common law, no action lay between tenants in common for the recovery of profits received by one tenant in common, anti ²⁵⁷ therefore it might he prejudicial, and productive of inconvenience to drive the. party in such case to his ejectment.

But since the statute of Anne, giving an action in such case, an acquiescence under that assumption of a sole right, has been held to he an'admission that the party claimed the sole right, and to amount to an ouster. Ld. Raym. 310. In the case of afine and non-claim it will bar the other unless he brings his action. 2 Atk. 632.

These cases plainly show the Courts require the parties to assert their rights, either by an action under the statute, for the profits, or they must admit a disseisin, in which case the statute of limitations would operate. 3 Bac. Abr. 219. Hardw. & Lee, 174. Apply these cases to the facts before the Court.

Here has been a sole, separate and exclusive possession of the defendants, and those under whom they claim, for more than forty years. It is said that Richard Gibson, through whom the defendants claim title, obtained this possession under an agreement or bond entered into with the plaintiff. The tenor of that agreement or bond shows it was to be carried into execution within a year after it was made, otherwise to become forfeited, and the party had his remedy at law. The bond is dated 27th January, 174G, penalty 500/. and recites, that the said “ Uoyd is now lawfully possessed of Timber Neck and Betty's Dowry, the right of one undivided moiety of which is in the said Richard Gibson; and whereas the said Edward and Richard, cannot immediately come to partition of those lands ; and whereas the said Edward has agreed to permit the said Richard to take possession of that tract called Betty's Dozvry, in order that he may make a crop : Sow the condition, &c. is, that the said Richard will, as soon as conveniently may be, proceed in a fair partition, &c. no advantage to be taken by the said Richard, of the said Lloyd, for giving him possession,5' Sir.

After such length of time the Conn- may presume ²⁵⁸