Brown v. Turner

The opinion of the Court was delivered by

The petitioner claims to be owner of two undivided third parts of a sawmill and utensils, and mill-yard and pond, &c. and shows in his petition how he derives title, to wit, by deeds from sundry persons, of the name of Pratt, and alleges that Amos Turner, the intestate, died seized of the other undivided third part, and that the three petitionees occupy the same. The fair import seems to be, that they occupy jointly. The petition concludes with appropriate averments, that he cannot use and occupy to advantage, and prays for a partition of the premises.

There are three pleas by the petitionees, on the two first of which issues are joined, and to the third there is a demurrer. This plea and demurrer present the only questions now to be decided. The substance of this third plea is, that the premises are not partible, and that the petitionees use and occupy by *354turns with the petitioner, according to their right, that is, one third part of the time, and this as other and former owners have been accustomed to use said premises. It is unnecessary for the Court to be particular in disposing of some questions relatjng to the form of allegation in the petition and plea. The petition sufficiently states a claim for partition, if the premises are partible, and the plea states that they are not partible, and are used by turns, &c. according to right, and as accustomed to be used. This presents the real merits of the controversy, can there be a partition of a sawmill and mill-yard, and pond, and utensils for a sawmill, among different owners ? Such a partition would destroy the whole. The using by turns, as the plea states the occupancy to be, is the only practicable mode in which such property can be occupied, and keep up at all the idea of several part-owners, unless there should be literally a joint possession, and the net profits be divided, as might be done by appointing a common receiver. This disposes of the whole case, for the only prayer is for partition. But if the prayer in the petition were ever so broad, if it included an assignment to one, or a sale of the whole, the Court would not deem it proper to make any such order, without different reasons from those which now appear. If the conduct of the petitionees were such, that the petitioner could not have and enjoy his turn in the occupancy of the premises, it would bear a different consideration. There is no such complaint, and the controversy is alleged in the plea, and confessed by the demurrer.

The judgment of the Court is, that the plea in bar is sufficient.