
    Aaron Colton et al. versus Reuben Smith et al.
    
    A judgment of partition on a petition by one tenant in common against a co-tenant who has mortgaged his interest in the land, is not binding on the mortgagee if he is not made a party to the suit and does not elect to confirm the partition.
    Such mortgager, being permitted by the mortgagee to remain in possession, has a right to occupy in common with the co-tenants, or in severalty 5 and his occupa tion in severalty, therefore, not being tortious, will not amount to an ouster or disseisin of the mortgagee and so will not prevent the mortgagee from sustaining a petition for partition.
    A petitioner for partition will be barred or estopped by a judgment on a former petition, if the parties and the title put in issue or necessarily decided are the same 5 but where the former partition was of part only of the land held in com mon, and all the co-tenants were not made parties to the suit, the judgment will not be a bar or estoppel to a subsequent petition for partition of the whole land held in common and to which all the co-tenants are made parties.
    This was a petition for partition, filed by Aaron Colton and Hazael Phillips, in which they represent that they are seised and possessed of one moiety of seventy-two acres of land lying in common and undivided with land of Reuben Smith and Gideon Phillips.
    Gideon Phillips was defaulted ; and the following facts appear from a statement agreed upon by the petitioners and the other respondent.
    At the Court of Common Pleas, August term 1829, these same petitioners presented their petition against Reuben Smith, for partition of three undivided fifth parts of sixty acres of land, being all of the premises described in the present petition, except twelve acres conveyed to Gideon Phillips as hereafter stated. At the November term of that court, the following facts were agreed and the following proceedings had.—In 1826, Quartus Smith, being seised of three undivided sixth parts of the seventy-two acres, mortgaged his share to Aaron Colton and Henry Phelon, and in January 1829, Phelon assigned his interest in the mortgage to Hazael Phillips. In November 1827, Reuben Smith, being seised of two other undivided sixth parts and Gideon Phillips, of the remaining sixth part, Reuben and Quartus executed a deed of release to Gideon of all their interest in twelve, acres of the land, and Gideon executed a like deed of release to them of all his interest in the remaining sixty acres. At the Cour< of Common Pleas, November term 1828, Reuben preferred his petition for partition of the sixty acres ; and Quartus, then being in possession of the same, appeared in court and consented that partition should be made. Partition was thereupon ordered to be made, and commissioners were appointed by the court for that purpose. The commissioners made a division, which was returned and accepted by the court at March term 1829, and although the present petitioners entered an appearance upon the docket and requested- to be heard at the return of the commission, yet they were denied a hearing, as not being parties, not having been named in the petition. Reuben Smith, since the acceptance of the division, has possessed the portion set out to him by the commissioners.
    On May 14, 1829, Quartus Smith certified on the back of the mortgage deed, that he had on that day given possession of the mortgaged premises to the present petitioners, for the purpose of foreclosing the mortgage ; and these petitioners immediately thereafterwards entered upon that part of the sixty acres which was not set off to Reuben Smith, and occupied the same. About the time of their entry upon the land, they gave notice to Reuben Smith that a petition would be presented for a new division. If the Court of Common Pleas should be of opinion that the petitioners were entitled to partition, judgment was to be rendered that partition should be made ; but otherwise they were to take nothing by their petition ; the parties, in either case, reserving the right of appeal. The Court of Common Pleas rendered judgment for the respondents, and from that judgment neither of the parties appealed.
    In the present case the parties agreed that the facts above stated were correct, and the following additional facts were admitted.
    Reuben Smith has held and occupied in severalty, up to the time of the service of this petition, that part of the land which was set off to him in his partition suit against Quartus ;
    Gideon Phillips entered and has occupied in severalty the part released to him by Reuben and Quartus Smith, from the time of the execution of the deed of release ; and the petitioners have occupied the residue of the seventy-two acres ever since the date of Quartus’s certificate. On March 19, 1830, Quartus released to the petitioners his right to redeem the land mortgaged by him to Colton and Phelon. The petitioners took possession on May 14, 1829, for the purpose of foreclosing the mortgage, and immediately afterwards notice was given to Reuben Smith, that possession under the mortgage was taken, and that a. petition would be presented for a new division. No act was done by the petitioners at the time of taking possession, or since, to turn Reuben Smith or Gideon Phillips out of the actual occupation of the parts they respectively possessed at that time. It was agreed that the judgments above mentioned should have the same effect as if specially pleaded by way of estoppel or in any other way.
    
      Sept. 20th.
    
    Lathrop, for the petitioners,
    argued that the judgment upon die former petition of these petitioners was not a bar to the present application, because it related to a different tract of land and was between different parties.
    The judgment of partition between Reuben Smith and the mortgager, does not bind the mortgagees, who were not made parties to it. Cook v. Allen, 2 Mass. R. 470 ; Agar v Fairfax, 17 Ves. 544 ; Sebring v. Mersereau, 1 Hopkins, 503 ; Wilder v. Houghton, 1 Pick. 87 ; Perkins v. Pitts, 11 Mass. R. 130; Wotten v. Copeland, 7 Johns. Ch. R. 140 ; Baring v. Nash, 1 Ves. & Beames, 551.
    The petitioners were not disseised at the time when notice of their petition was served on the respondents. There was a several occupancy by Reuben Smith, but no ouster of his co-tenants, Shumway v. Holbrook, 1 Pick. 117 ; Fisher v. Prosser, Cowp. 218.
    
      Leonard, for the respondents.
    The petitioners are concluded by the judgment between Reuben and Quartus Smith, because it is an incident to every estate held in common, to be subject to division on the application of any one of the tenants in common, and he is not obliged to look beyond his co-tenants in possession. The case of a mortgagee resembles that of the wife of a tenant in common ; who is bound by a partition made by the husband, and her right of dower attaches to the part set off to her husband. Potter v. Wheeler, 
      13 Mass. R. 507 ; Jackson v. Pierce, 10 Johns. R 414 ; Co. Lit. 175.
    
      Sept. 23d
    
    From the nature of the respective estates of mortgager and mortgagee, notice to the mortgager, of a petition for partition, is sufficient to bind the mortgagee. Goodwin v. Richardson, 11 Mass. R. 473 ; Astor v. Hoyt, 5 Wendell, 615 ; Porter v. Perkins, 5 Mass. R. 237 ; Hunt v. Maynard, 6 Pick. 491 ; Appleton v. Boyd, 7 Mass. R. 134 ; Porter v. Hill, 9 Mass. R. 35 ; Stearns on Real Actions, 192 ; Gray v. Blanchard, 8 Pick. 292 ; Willington v. Gale, 7 Mass. R. 139 ; Poignard v. Smith, 6 Pick. 176 ; Mersereau v. Runyan, 11 Johns. R. 538.
    But the petitioners had notice of Reuben Smith’s application for partition, for they appeared in the Court of Common Pleas and asked to be heard. They were entitled to a hearing ; which being denied them, it was incumbent on them to take the opinion of the Supreme Court on that question. Cook v. Allen, 2 Mass. R. 470 ; Ramsdell v. Creasey, 10 Mass. R. 170.
    The petitioners are estopped by the judgment on their former petition, the sixty acres of which partition was claimed being a part of the same land described in the petition now before the Court. 1 Mod. Entr. 434, cites 3 Lev. 180.
    The petitioners were disseised by Reuben Smith, and therefore cannot maintain this application for partition until they have recovered seisin. Smith’s occupation was under a claim of right, in pursuance of the judgment rendered upon his petition, and was therefore an ouster of the petitioners. Barnard v. Pope, 14 Mass. R. 438 ; M'Clung v. Ross, 5 Wheat. 116 ; Taylor v. Porter, 7 Mass. R. 357 ; Jackson on Real Actions, 55 ; Varnum v. Abbot, 12 Mass. R. 478.
   Wilde J.

delivered the opinion of the Court. It seems to us very clear, upon the facts agreed, that the petitioners are entitled to judgment for partition as prayed for in their petition. It is admitted that they have derived a legal and valid title to the moiety of the premises under a mortgage deed from one Quartus Smith, and the respondents agree that they are entitled to judgment, unless they are barred by the proceedings set up in the defence. It appears that after the mortgage deed, Reuben Smith, one of the respondents, preferred his petition for partition to the Court of Common Pleas, and that judgment was rendered thereon, and partition made accordingly, in which the share and purparty of Quartus Smith was set off to him in severalty. But in this suit the petitioners were not made a party, and for that reason were denied a hearing by the court, and therefore they are not bound by the judgment in that case.

The mortgager was only tenant at will and could do no act binding on the mortgagee, or prejudicial to his title. The case of Potter v. Wheeler, 13 Mass. R. 504, cited by the respondents’ counsel, was an action of dower and is not applicable. The partition between the husband and his co-tenant was held binding upon the wife, because at the time of the partition the whole estate was in the husband ; the wife had no estate and could not be made a party to the partition. By her marriage it is said she gained an inchoate right to her dower, subject to the contingency of partition which any tenant in common might be compelled to make. Nor do we consider the case of Jackson v. Pierce, 10 Johns. R. 414, as of much weight. We have no doubt that a mortgagee may elect to confirm a partition made by the mortgager, and that the other parties to the partition would be bound by such election. But if he considers the partition unequal or in any respect prejudicial tó his interests, he clearly is entitled to set it aside and demand a new partition.

But it has been argued, that if the partition set up was not binding, yet that the mortgager’s entry under it and subsequent occupation . amounted to an ouster or disseisin of the mortgagees or those claiming under them. This argument, however, is not sustained by the facts agreed. The mortgager, being permitted to remain in possession of the mortgaged premises, had a right to occupy in common with' the other co-tenants or in severalty. He was not accountable to the mortgagees for the rents and profits ; his occupation therefore was not tortious, and could not amount to an ouster or disseisin of the mortgagees.

Then it was argued, that the petitioners are barred or estopped by the judgment on their former petition, and no doubt such would have been the legal effect of that judgment, if the parties, and the question of title put in issue, or necessarily decided, had been the same ; but that was a petition for a partition of a part of the land held in common, and such partition could not be legally made except with the consent of all the tenants, and on that ground the judgment of the Court of Common Pleas was correct. Whether the case was decided on that ground or not, is immaterial, because unless the question of title now raised was distinctly put in issue, or necessarily decided, in the former suit, the judgment cannot operate as an estoppel or bar to the present action.

Judgment for partition as prayed for. 
      
       See Rev. Stat. c. 103, § 47; Bradley v. Fuller, 23 Pick. 1; Munroe v. Luke, 19 Pick. 39.
     
      
       See Rich v. Lord, 18 Pick. 322; Fisher v. Dewerson, 3 Metc. 544; Bradley v. Fuller, 23 Pick. 1; Nichols v. Smith, 22 Pick.. 316; Call v. Barker, 3 Fairf. 320; Upham v. Bradley, 5 Shepl. 423; Miller v. Dennett, 6 N. H. R. 109.
     
      
       See Rev. Stat, c. 103, § 33, et seq.; Whittemore v. Shaw, 8 N. H. R. 393
     