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BARNES V. LYNCH.
(151 MASSACHUSETTS, 510.) OO-TENANOY. – CONVEYANCE OF A PORTION OF THE COMMON LANDS by
metes and bounds, even when they are composed of separate parcels,
may be treated as void by the other co-tenants. PARTITION OF A PART OF THE COMNON LANDS, ALL OF WHICH ARE SITU.
ATE IN THE SAME COUNTY, cannot be enforced except by the consent of all the co-tenants; and though one parcel of such land may have been con. veyed by one of the co-tenants purporting to convey it in severalty, his grantee is entitled to insist that no partition be made except of all the lands of the co-tenancy. Such partition is of advantage to him, because it may result in the setting off to his grantor of the part so conveyed in severalty, and the operation of the conveyance, by way of estoppel, so
as to give a perfect title to the grantee. PARTITION MAY BE MADE So as to PROTECT those who may be benefited
incidentally, as, for instance, grantees in severalty of some of the cotenants, where they can be protected without prejudicing the rights of
other tenants in cominon. SEPARATE SOITS OF PARTITION OF FOUR SEPARATE PARCELS OF LAND SITUATE
IN THE SAME County will not be allowed, though one of the co-tenants, claiming to own the land in severalty, has conveyed three different par. cels of it to as many different persons. B. B. Jones, for the petitioners. C. U. Bell and J. R. Poor, for the respondent Lynch.
DEVENS, J. Benjamin G. Boardman, Sen., died seised of four distinct parcels of land in Lawrence, which descended to his four children. Soon after his death, Benjamin G. Boardman, Jr., one of his sons, erroneously claiming title in severalty to all these parcels, conveyed three of them to different persong. The title thus claimed by Benjamin G. Boardman, Jr., was founded upon a purchase of these four parcels at a tax sale, which sale has been declared void by a recent decision of this court: Barnes v. Boardman, 149 Mass. 106. The grantee of one of the parcels thus conveyed by Benjamin G. Boardman, Jr., one Harrigan, conveyed the same to the respondent Lynch, who purchased it in good faith. The petitioners, in their petition for partition in the case at bar, are the children and heirs of Charles W., one of the sons of Benjamin G. Boardman, Sen., who have brought separate petitions for the partition of these four separate parcels. The respondents in this petition are Lynch, who claims under one of the deeds from Benjamin G. Boardman, Jr., and the heirs or devisces of the two other children of Benjamin G. Boardman, Sen. None of the respondents object to the partition of the parcel in question except Lynch, and the questions pro
sented are, whether he can object that partition of all the four parcels of the land which descended to the children of Benjamin G. Boardman, Sen., as tenants in common, is not sought in this proceeding, and whether this petition can be maintained against him for partition of this single parcel. The deed from Benjamin G. Boardınan, Jr., under which Lynch claims, purported to convey the whole of the parcel described therein, and the contention of the petitioners is, in substance, that they may, without recognizing its full validity as an operative conveyance, recognize it to the limited extent of conveying the interest of Benjamin G. Boardman, Jr., in the parcel therein described, and that Lynch may thus be treated as their co-tenant in this parcel only.
That a deed of a portion of the common land by metes and bounds, even where it is composed of separate parcels, may be treated as void by the other co-tenants, is well settled. Nor can a tenant in common enforce partition of a part of the common land situate in the same county, except by consent of all the co-tenants: Bartlet v. Harlow, 12 Mass. 348; 7 Am. Dec. 76; Varnum v. Abbot, 12 Mass. 474; 7 Am. Dec. 87; Miller v. Miller, 13 Pick. 237; Blossom v. Brightman, 21 Pick. 283, 284; Marks v. Sewall, 120 Mass. 174, 177. The co-tenants must either treat the deed of the separate parcel to Lynch as good, or must avoid it. If it is treated by them as good, then Lynch is entitled to the parcel it undertakes to convey. If they avoid it, they have no further concern with Lynch, but must proceed against Benjamin G. Boardman, Jr., for a division of the whole common land. They cannot treat the deed as good to the extent of conveying the interest of Benjamin G. Boardman, Jr., in the specified parcel, and thus make Lynch their co-tenant in the distinct portion of the common land. Benjamin G. Boardman, Jr., had no more right to convey his interest in such a parcel than the parcel itself, nor did he undertake to do so.
If, as the result of a partition between the other co-tenants and Benjamin G. Boardman, Jr., the lot of land conveyed to Lynch shall be assigned to Benjamin G. Boardman, Jr., then the conveyance made by him might operate by way of estoppel against him: Varnum v. Abbot, 12 Mass. 474; 7 Am. Dec. 87. Whether such a partition will be made is indeed uncer. tain, but Lynch is entitled to the chance that it may be made, and that thus he may be invested with a title.
The petitioners have brought a separate petition for partition of the lot unconveyed by Benjamin G. Boardman, Jr., and separate petitions for partition of each of three several lots conveyed by him. It may be that the four lots are of equal value; if so, it is not just that the other co-tenants should be allowed to prevent Lynch or the other individual grantees from having the interest of Benjamin G. Boardman, Jr., in the unconveyed parcel considered in the division; nor should it in this way be ret: ined for him. Yet such would be the probable effect of the course proposed. It may be that the lots are of very unequal value, and that the unconveyed parcel is worth much more than the parcels conveyed, perhaps three or four times as much. If so, a partition might be made which would assign to Benjamin G. Boardman, Jr., the three parcels which he has conveyed separately. It is not an answer to say that in a petition for partition of the whole estate held by the tenants in common the respondent Lynch could not be heard. The conveyances made by Benjamin G. Boardman, Jr., were made erroneously, by reason of a supposed title distinct from that of the tenants in common. It is to be presumed that he will desire to see justice done his grantees as far as possible in the division, and certainly that he will not seek to hold on to the share of the fourth parcel which his cotenants would leave him, as against the conveyances made by bim. While partition is to be made with reference to the rights of co-tenants, there is no reason why, these being fully regarded, it should not be made so as to protect those who may be protected and benefited incidentally: Freeman on Cotenancy and Partition, sec. 205. When an estate in common consists of several parcels, it is not necessary that there should be assigned to each co-tenant a share in each parcel: Hager v. Wiswall, 10 Pick. 152. It is possible, certainly, that in the partition so made Lynch will not receive as much as the petitioners propose to allot to him, or that if a separate parcel is assigned to Benjamin G. Boardman, Jr., in the partition, it will be one other than that in which Lynch is interested. This is a matter which he must consider. He has a legal right that the tenants in common shall recognize the deed as valid which purported to convey to him by metes and bounds a parcel of the common estate, or that they should treat it as invalid, and deal only with his grantor, leaving to Lynch such remedies as he may have.
In Bigelow v. Littlefield, 52 Me. 24, 83 Am. Dec. 484, the precise question here discussed was passed upon, and it was there held that where partition of real estate is to be enforced by legal process the partition of the whole tract held in common must be petitioned for at the same time; that one tenant in common could not enforce partition of a part only of the common estate; and that a conveyance by a tenant in common of a part only of the land thus held would not authorize a cotenant to enforce partition of such part against the grantee, leaving the rest of the estate un partitioned. In that case a husband and wife were co-tenants; the husband conveyed to one Hilton (who afterwards conveyed a portion thereof to one Littlefield) a certain tract of the common estate by metes and bounds, for a full consideration, and the wife then petitioned for a partition of the tract thus conveyed. It is there'said that if the petitioner had asked to have the whole estate partitioned, the title of the respondents could have been protected by setting off to the husband the part of the land held by them, leaving to the wife the remainder; or if the land conveyed to the respondents was more than the husband's portion, the title of the respondents could be protected to the extent of the husband's interest in the whole tract. This case does not differ in principle from that at bar; indeed, if Lynch were the only grantee, it would be precisely parallel. While in the case at bar, taken in connection with the other cases, there is more than one grantee and one tract of land, and wbile there may be less chance that all will be protected, and some may and some may not be, the grantees have the right that the whole share of Benjamin G. Boardman, Jr., in the common estate, be considered in any partition, and that they should not be required to limit themselves to his proportion of the three tracts which he assumed to convey in severalty. The co-tenants should not be permitted to divide the common estate into parcels, and then seek partition of some of these parcels only.
It is a minor matter, but not unworthy of notice, that the proceedings initiated by the co-tenants require four distinct suits, with their attendant costs and expenses, whereas if one had been brought without reference to the deeds to Lynch and others, the whole matter would have been settled by a single petition. For the reasons stated, a majority of the court are of opinion that the entry should be, petition dismissed.
00-TENANCY - CONVEYANCES BY ONE TENAKT IN COMMON. A tenant in common may convey his own interest in one of several tracts or parcels of
land held in common by several persons: Shepherd v. Jernigan, 31 Ark. 275; 14 Am. St. Rep. 60, and note; Peterson v. Fowler, 73 Toz. 624. But one tonant in common cannot, as against his co-tenanto, convey part of the common property in severalty by metes and bounds, or even an undivided share of such part: Whitton v. Whitton, 38 N. 4. 127; 75 Am. Doa 163, and note 171, 172; Ballou v. Hale, 47 N. H. 347; 93 Am. Deo. 438. Such a convey. ance is absolutely void: Duncan v. Sylvester, 24 Me. 482; 41 Am. Dea 400.
PARTITION - WHAT PREMISES MAY BE PARTITIONED. - A tenant in common cannot enforce partition of a part only of the common estate: Bigelow v. Littlefield, 52 Mo. 24; 83 Am. Dea 484, and noto 185, 186, Frooman on Cotenanoy and Partition, sca. 60&
MORASSE V. BROCHU.
(151 MABBACHUSETTS, B67.] BLANDKR-PLEADING. - THE NAMES OF PERSONS WHO HAVE CEASED TO Ex
PLOY PLAINTIFF need not, it has been held, be stated in a complaint in an action to recover special damages for slander, whereby plaintiff was injured in his trade or profession. The rule upon this subject in Massa
chusetts discussed, but not decided. SLANDER. WORDS NOT DEFAMATORY WILL SUPPORT AN ACTION FOR SLAN.
DER, if they are falsely and deliberately uttered to work injury, and ac
complish their intended purpose. SLANDER. — WORDS ARE ACTIONABLE PER Sę which convey an imputation
apou one in the way of his profession or occupation, and in such case
there need be no averment of special damages. SLANDER. A PRIEST IS LIABLE TO AN ACTION FOR SLANDER, if, referring
to a physician who has contracted a second marriage before the death of his divorced wife, he informs his congregation, in effect, that the fact of such mirriage is to excoinmunicate the person referred to, and that if any of them shoull be sick, and in want of the priest's assistance, they need not send for himn if such physician was there, because he, the priest, would not be in the same room with him. These words were a virtual instruction that the person referred to was an unsuitable and improper person to be employed as a physician, and a direction not to employ him,
on pain of losing caste in the church and the ministrations of its priest. SLANDER - EVIDENCK IN AGGRAVATION OF DAMAGES. Where a physician
bas sued a priest for slander, it is proper to prove, in aggravation of damages, that after the action was brought the defendant referred to it in the presence of his congregation, and said, “We shall see if the
church shall destroy the verinin or the vermin the church." J. Hopkins, for the defendant. W. S. B. Hopkins and A. J. Bartholomer, for the plaintiff.
C. ALLEN, J. 1. The defendant contends that there is no sufficient averment of special damages. The averment in respect to the plaintiff's loss of practice as a physician is,