Opinion
Decided June, 1883.
Without actual possession or entry, a tenant in common is entitled to partition against a co-tenant in actual and exclusive possession.
The presumption of payment after twenty years is a disputable one.
A tax title of land owned in common, when purchased by one of the cotenants, cannot be set up by him against the others, except to enforce equitable contribution.
BILL IN EQUITY, for partition. Facts found by a referee.
Barnard Barnard, for the plaintiff.
E. A. Hibbard, for the defendant.
It is agreed that one fifth of the title passed to the plaintiff by estoppel. Robertson v. Wilson, 38 N.H. 48. And he is entitled to partition without entry, actual possession, or judgment in a writ of entry, and notwithstanding the defendant's actual and exclusive possession. The plaintiff's title and right of possession are sufficient for the maintenance of this action without a technical seizin not included in his title and right. In this state the ancient doctrine of entry and seizin is largely obsolete. The plaintiff claims another fifth under a levy of an execution on a mortgagor's equity of redemption. But the mortgage has been foreclosed, and its covenants are effective as an estoppel against the mortgagor. Fletcher v. Chamberlin, 61 N.H. 438. After twenty years the mortgage debt was presumed to be paid; but the presumption is a disputable one, and the fact is found that the debt was not paid.
The defendant claims all the land under tax titles which he has bought: but they are not a bar to this or any other real action in which the plaintiff's judgment may contain a condition requiring him to contribute his share of what the defendant has paid There will be an accounting at the trial term, and a decree for a partition assigning the plaintiff one fifth of the land when he pays into court the amount equitably due from him for taxes paid and tax titles bought by the defendant.
Case discharged.
CARPENTER, J., did not sit: the others concurred.