
    
      John Pierce versus Benjamin L. Oliver and Others.
    
      1 his Court will not sustain an appeal from the Common Pleas from a judgment of that Court, accepting the return of commissioners appointed to make partition, pursuant to a petition for that purpose, j
    i [Such an appeal is allowed in Massachusetts, by Rev. Stat. c. 103, § 19.— Ed j
    
      This was a petition for partition, in which the petitioner alleges himself seized of certain lands in the County of Oxford, in common with others to him unknown, and was originally presented to the Circuit Court of Common Pleas, in that county, who ordered notice in some public newspaper, pursuant to the provision of the statute of 1783, c. 41, § 3. No respondent appearing upon such notice, and proclamation being made, commissioners were appointed to make partition as prayed for. Upon the return of their doings being offered for acceptance, J. Holmes, as attorney to Oliver Sf al., filed a motion, praying that they might then be admitted as respondents, and averring that neither they nor he had any notice of the pendency of the petition ; to which fact Mr. Holmes also made and filed his affidavit. The Court of Common Pleas thereupon admitted them as respondents, and they filed a plea in bar ; but at a subsequent term their admission was refused, and the * return of the commissioners was accepted. Oliver fy al. then claimed an appeal from that decision, which was also denied.
    The appeal was, however, entered in this Court, May term, 1814, and the Court, after hearing the parties, ordered that the appeal be sustained. At the following October term, Oliver fy al. filed a plea of sole seizin as to several parcels of the land described in the petition. The counsel for the petitioner then filed their objection against receiving the said plea, and against being held to reply to the same ; inasmuch as no appeal had been made from the judgment of the Court below that partition be made, and by the said plea that judgment might be called in question, which would be contrary to the provisions of the statute.
    The cause stood over to the last May term in this county, for the consideration by the whole Court of the said objection, when
    
      Bradley, in support of the objection, contended, that the notice having been given pursuant to the direction of the statute, all parties were bound by it.
    By the statute of 1786, c. 52, § 2, an appeal is given from the judgment of the Court of Common Pleas, that partition shall be made before the appointment of the commissioners ; but, if no appeal be made until after the return of the commissioners and the judgment of the Court thereon, the judgment, that partition shall be made, shall not, by such appeal, be again called in question. But the plea offered by the respondents goes directly to call that judgment ’n question.
    
      Mellen, for the respondents,
    cited the case of Ramsdell vs. Creasy, 
       in which a respondent was admitted to enter her appearance in this Court, after the return of the commissioners, and finally established her title.
    
      Bradley, in reply.
    In that case all the proceedings were had in this Court, and so were under its control. But this Court has not authority to vacate the judgment-of the Common Pleas.
    
      
       10 Mass. Rep. 170.
    
   *By the Court.

The question to be decided by us in this case is, whether the respondents, who were admitted to enter their appearance in that character in the Court of Common Pleas, were legally entitled to appeal from the order of that Court accepting the return of the commissioners who had been appointed to make partition. We think the Common Pleas were justified in refusing to allow the appeal. The statute seems decisive, that the respondents shall have no appeal from the judgment accepting the order of the commissioners, so as to call in question the first judg ment, that partition shall be made. The case cited from our own reports, being wholly in this Court, was not within the statute.

This restraint on the respondents is of less importance, in that it leaves the whole question of right open to inquiry in other actions. Judgment of partition extends at most to bind the right of possession. The right of property is not at all affected by it. There is no necessity, nor even convenience, then, in vacating the judgment of the Court of Common Pleas, if the statute had not expressly prohibited it. It is therefore affirmed.  