The only question of title of any doubt arises from a deed of conveyance from Nancy Jones to her sister Hepzibah Jones, from whom the parties respectively derive their titles. Unless Hepzibah took some estate in the premises, by virtue of this conveyance, or unless it operates by way of estoppel to the petitioner’s claim for partition, it is very clear that the respondent cannot maintain the defence. It appears by the deeds, and the statement of the case, that Nancy Jones had a valid title to three fifths of the premises, and that her right therein was attached by the petitioner, and afterwards execution was extended on an undivided moiety, within 30 days after judgment, according to law. Some objection was made to the form of the execution, which, however, appears to be unfounded. If the debtor’s right in a part of the premises had been taken, and set out by metés and bounds, the levy might have been avoided by the other tenants. The principal question therefore is, whether the petitioner is estopped, by the deed of the said Nancy, to set up his present claim. By that deed she conveyed to her sister Hepzibah two parcels of land adjoining the premises now in dispute, and in the granting and descriptive part of the deed is the following clause : “Easterly on land owned, and to be occupied in common as a yard, by the said Hepzibah, and me the said Nancy, our heirs and assigns for ever.”

Whether this clause will amount to a covenant that the premises should be occupied in common as a yard, or will estop the parties to set up a claim inconsistent with such an occupation, is,a question which is not material in the present suit. For if the parties would be thus estopped, still their respective rights and interest in the soil would remain unchanged. Neither party can maintain a plea of sole seizin. Partition therefore must be awarded, unless it can be shown that partition would be inconsistent with the common occupation of the premises as a yard — supposing the parties to be entitled, by covenant or estoppel, to *547the privilege of such an occupation. And we think no such inconsistency exists. Neither party can be prejudiced in this respect by the partition. If the respondent has any such right, it will not be impaired by the partition. The right of occupation will remain, but it will only be a right of occupation, or an easement, which cannot be set up in defence to a suit for partition, or in any real action. It is very true that if the respondent has a right of occupation in common, it will render the partition less beneficial to the petitioner; but it cannot prejudice the respondent. The petitioner may have a cellar in the prem íses without disturbing the common occupation ; and if he car make no beneficial use of his property, he has a right to main tain his suit in order to establish his title, which, it seems, has been questioned ; for although the petitioner recovered judgment against Hepzibah Jones, yet after her marriage with the respondent, he denied the petitioner’s title : And an action being brought by him against the respondent, the plaintiff, for some cause which does not now appear, became nonsuit: So that it becomes necessary for him to assert his title to the premises ; and if judgment should be rendered for the respondent, on his plea that the petitioner is not seized in common, as alleged in the petition, it would bar his possessory right. It is not therefore material, whether the partition will be beneficial or not to the petitioner, should the respondent make good his right to the occupation of the yard in common with the petitioner. The question, now to be determined, is a question of title, and that is made out clearly as alleged in the petition.

It has been argued that the petitioner has been disseized, and that this is a good bar to the present suit. But there is no evidence of an actual ouster. In 1838, a dispute arose between the parties about their respective titles, and the petitioner commenced an action against the respondent, by which he elected to consider himself disseized for the sake of his remedy ; but this does not bind him in the present suit. And as there is no proof of an actual ouster, ’-t seems very clear that the petitioner is en titled to judgment.

iar'itio fiat-