Samuel Broughton vs. David Howe and Phebe Howe, 6 Vt. 266

The opinion of the court was pronounced bv Williams, Chan. — This case comes before us on the bill and answer. The bill sets forth, that Joshua Howe made his will, devising to his son David fifty acres of land during his life, and the remainder to the three sons of David) to wit: Jesse-, Ob.ed, and David, the defendant. The defendant, Phebe Howe, is mother of the defendant, David, and relict of David the son of Joshua. David the elder died in January, 1814. Jesse and Obed were then of age, and David a minor. These facts are admitted by the answer.

The bill then charges, that soon after the death of David the elder, an actual division was made of the fifty acres into three parts. The north part was set to Jesse, the middle to Obed, and the south to David; and that Jesse went into possession of the two north parts, and David the south part.

The answer denies this part of the bill, but sets forth that there was some agreement between him and his brother Jesse, in relation to the occupation of the same in severalty, and for the purpose of supporting their mother; but says that Obed was not consulted, and that he was then under age, and that Obed refused his assent thereto when he was informed of the same. It appears, however, by the bill and answer, that Jesse went into possession of two north parts, and David, the defendant, of the south part.

On the twenty-third of January, 1816, Jesse conveyed by metes and bounds to the complainant the two north parts of the whole premises, and the complainant went into possession of the same, and continued in possession until the spring of 1817-. The deed was placed upon record.

The bill further charges, that on the 17th of April, 1817, the defendant, David Howe, without the knowledge of the complainant procured a committee to be appointed by the probate court, to make division of the estate thus bequeathed to them by the will of Joshua Howe; and that the committee, without giving any notice to the complainant, proceeded to make a division, and assigned to the said Jesse the south part, which had before been actually divided to -the said David.; and to Obed the middle part, and to David the north part; and that David took possession, and turned the complainant out of possession of the two north parts.

The answer admits the application to the court of probate, and sets forth a division made by the committee appointed by the said court, and the acceptance thereof by the court of probate. The defendant became of age on the 25th of February, 1817, and this order was obtained in less than two months, to wit: on the 17th of April, 1817.

The complainant insists that Éie división “is illegal and must be set aside, as he was nqt notified, and that such notice was necessary by the statute then in force in relation to partition among heirs and legatees; and further sets forth, that by the location made by the committee, the part set off to Jesse was out of the boundaries contained in the deed from Jesse to him; that he had no notice of the proceedings in the probate courtjn season to take an appeal; that Jesse was insolvent and had absconded, and that his creditors have levied executions on the part set off to him by the committee.

The bill prays that the division may be decreed to be null and void; that the defendant may be decreed to convey to the complainant the north part, or one third of said fifty acres, and account to him for the rents and profits thereof. It does not appear whether Obed has ever deeded his share of the fifty acres, either to Jesse or the defendant; and of course Jesse could have had no pretence of right to that part of the fifty acres, if he had any reasonable expectation of enjoying the residue, and could not convey it to the complainant.

To entitle the orator to the relief he asks for, he must assume that the division made by the court of probate in 1817 is valid until set aside. If it was void for want of notice, as he has strenuously contended in his argument, he does not require the interposition of this court, as he has as ample a remedy at law as he ever had. If that division is valid, it is to be remarked that all the equitable circumstances on which the orator relies for relief are denied by the answer. The orator was not of age when the division in fact was made. The division made by the court of probate was legal in every respect.

As the land was actually held in common when the deed was executed by Jesse to the complainant, that deed was so far void and inoperative, that it would not entitle the complainant to any notice from the probate court. One tenant in common cannot convey by metes and bounds a part of the estate held in common, where it would operate to the injury of his co-tenants.

The other tenants were seized of their share of the whole estate, and had a right to have their share set off to them in severalty in any part of the estate; which they could not do, if one tenant can convey his share in a part of the estate by describing that part by metes and bounds. The bill must therefore be dismissed with cost. •