Nathaniel Peabody et al. versus Stephen Minot et al., 24 Pick. 329

Morton J. delivered the judgment of the Court. The petitioners claim under the levy of an execution in favor of Moses Wingate against Seth Trask. Seth Trask was one of the four children and heirs of Samuel Trask, deceased, to whom his estate descended. Dower was assigned to the widow of Samuel, but the estate was never divided among the heirs. Wingate levied his execution upon one fourth of the reversion of the dower and one eighth of the residue of the estate.

An execution had before been levied upon an eighth of the same ; and if the first levy was valid, Wingate took all the estate and interest that remained in the judgment debtor. These two levies rest upon the same principle and must stand or fall together. It has been settled by this Court in several adjudications, which have never been questioned, that as a tenant in common has only an undivided interest, so an execution can only be levied upon an undivided share. Bartlet v. Harlow, 12 Mass. R. 348 ; Baldwin v. Whiting, 13 Mass. R. 57.

This principle applies directly to the first levy and indirectly to the second. The ground of the decisions is, that as a tenant in common cannot do any thing inconsistent with the rights and interests of his cotenants, neither can his creditors. They can only acquire the estate and rights which he holds. Each tenant has a right to have his share set off to him in severalty, in such part of all the land held in common as the proper tribunal shall assign to him. No tenant can do any thing inconsistent with this right.

Hence no tenant can convey by deed or by the levy of an execution, which is a statute mode of conveyance, any specific parcel of the common land in severalty, or his proportion of any specific pp—3Í. To take one proportion of one parcel, and a different proportion of another parcel, would as essentially infringe the rights of the cotenants, as to take an undivided portion of a specific parcel. Such a levy would, therefore, be condemned by the principle of the cases referred to. But it is possible that there may be tenancies in common so situated that the doctrine would not apply to them.

The foundation of the rule is the injury to the cotenants. And one tenant may always manage his own estate in any way he pleases, provided he does not injure his cotenants. If common lands lie in two different counties, a partition can be compelled only by two different processes and two different commissions, and of course by assigning to each tenant severally a purparty of what lies in each county. Bonner, Petitioner, 4 Mass. R. 122. How then could a conveyance of a tenant’s share of the land in one county impair the rights of the other tenants ?

The relation of tenants in common to their estate and to each other, may also be affected and changed by the operation of law or the action of the judicial tribunals. When a tenant in common dies, the judge of probate has a discretion to have his purparty severed before it is distributed among his heirs, or to be distributed as a tenancy in common. St. 1817, c. 190, §25 ; St. 1820, c. 54.

So in the distribution of real estate among heirs or devisees, the judge of probate has a discretionary power to order a division of the reversion of the dower with the rest of the estate, or at the expiration of the life estate. St. 1817, c. 190, § 31. The assignment of dower materially affects the estates and interests of the tenants. On the death of the ancestor the estate descends to his heirs and they immediately become seised of it as tenants in common. Neither can convey, nor can a creditor of either seize on execution, any particular parcel of it.

It is subject to the widow’s dower, and when that is set off, they remain seised and in the actual possession of two thirds and seised of the reversion of the other third, but not entitled to the possession till after the termination of the estate in dower. These, for some purposes at least, may be deemed two distinct tenancies in common, the one, of the two thirds in fee, and the other, of the reversion of the one third. The share of either tenant, therefore, may be conveyed or levied upon separately. The objection to the mode of appraisal is answered by the case of Bond v.

Bond, 2 Pick. 385 ; in which it is directly decided, that several parcels of real estate may legally be appraised together in one gross estimate. Wingate’s title was therefore good, and his conveyance to Preston valid. Preston became seised as tenant in common of one fourth of the reversion of the dower, and of one eighth of the other two thirds of the estate. He conveyed to the petitioners all that part of the estate which lay in the town of Bradford. The. whole of the two thirds is in that town, but a part of the dower lies in Methuen.

His deed purported to convey only a part of one of the tenancies in common, and upon the principles above explained was ineffectual to pass any part of it. But as to the other tenancy the objection does not apply, and the petitioners must have assigned to them one eighth of that part of the estate which was not set off to the widow. The petitioners having recovered less than they claim in the petition, the respondents are entitled to costs. But as they are the heirs of one of the children of Samuel Trask, they in effect are but one party.

And although they have pleaded separately, yet they all make the same defence, and their several pleas have not had the slightest effect upon the trial. They can, therefore, be allowed only single costs.