Ashbel Smith v. Polly Benson, 9 Vt. 138

The opinion of the Court was delivered by Redfield, J. This question has never been directly before this court for adjudication till now. In the case of Galusha v. Sinclear, 3 Vt. R. 394, an opinion is expressed, arguendo, that such a levy, as the present, would not be valid. This opinion of the late Chief justice has, to a considerable extent, gained the confidence of the profession,as being founded in sound reason. When the levy of an execution or deed of conveyance is extended over the entire interest of the tenant, no question ever arises.

Most of the conveyances by tenants in common, found in the books, are of this character. 1 find no authority, at common law, for a conveyance by one tenant in common, of a portion of his interest in the common estate, by metes and bounds. The intimations referred to by Jackson, Judge, in his opinion, in the case of Bartlet v. Harlow, 12 Mass. 348, as found in Coke and Coke Littleton, and Viner’s abridgment, are wholly unsatisfactory. If any such .mode of conveyance was ever attempted at common law, no case has come up for judgment, involving that question.

It is laid down by all the early writers upon this subject, that one tenant in common, or joint tenant can do no act prejudicial to the common estate. Hence, it has been inferred, he could not convey .a portion by metes and bounds. And in Massachusetts and Connecticut, the doctrine is well settled, that such conveyance is void. Porter v. Hill, 9 Mass. 34. Mitchel v. Johnson, 4 Conn. Rep. 495. Giswold v. Johnson, 1 do 363. In both those States, too, a levy of execution, in the same manner, is held void. Starr v. Leavitt, and Henman v. Leavenworth, 2 Conn. Rep. 243 and note, and Bartlet v. Harlow, ubi sup.

We are inclined to adopt the doctrine of these cases. We know that ¿he argument ab inconvenienti is one not very difficult to be had, in a science composed of difficulties and doubts, and, therefore, not an argument of much weight in most cases. But in the present instance, it does seem not a little perplexing to resist its force. If one tenant in common is to be permitted to convey his portion of the estate, by separate parcels, to more than one, he may to any number.

And if these conveyances are valid, the co-tenant is bound to make partition with each of these separate grantees, and an estate, which originally was valuable, with the right to compel partition with one only, becomes wholly worthless, from the obligation to submit to perpetual sub-division. Before the statutes of Henry VIII, and William III, tenants could not be compelled to make partition of their lands. The mode of conveyance then, while the estate must still be held in common, unless all the proprietors consented to partition, was not very important.

But after the compulsory partition, provided by these statutes, which exists -with us also, it became almost indispensable to the rights of co-tenants, that they should not be compelled to submit to repeated sub-divisions of the entire estate. Under this process, the separate parcels might not be adjoining each other, and thus be rendered more or less useless, under different circumstances. It is not necessary to state extreme cases.

Almost no case can be supposed, that will not expose the co-tenant to injustice, which will be prevented by requiring the conveyance to be of an aliquot portion of the entire interest. The arguments, which have been named, apply with still greater force to the case of a levy of execution. This is a conveyance by operation of law, and should not be allowed, except where the estate might be so conveyed by the debtor.

It is a conveyance in invitum-, and it will, therefore, be still more unreasonable to subject the co-tenant to the caprices of fifty creditors, than of his co-tenant, whom he may be said, in some sense, to have selected. If this mode of conveyance is allowed, it will put it in the power, net only of the tenant, but of bis, creditors, very materially to control the partition, not in accordance wjth the statute, but their own whims.

It may be true, that this levy will operate as an estoppel against the debtor, Abijah Benson, and, had partition been made, it might enable the plaintiff to hold so much of the land as fell to the share of the debtor. But that case is not now before us. The claim to recover rents and profits, in this action, even although the court should not consider the levy valid, is ill founded.

In the action of trespass and ejectment, as our action of ejectment is sometimes denominated, mesne profits are recovered only in those cases, when at common law the action of trespass for mesne profits would lie, i. e. when there had been a recovery in ejectment. .The recovery of damages,in this action, is but an incident of the recovery of the.land. If the plaintiff fails to recover the principal, he must of course fail to recover the incidents. As.we consider the levy insufficient to convey the land, the judgment of the Court below is affirmed.