
    Ephraim Cook versus Jacob Allen.
    Upon a petition for partition, and public notice pursuant to the statute, the right of'possession of one claiming to hold in severalty part of the land described in the petition, and of which partition is prayed for, is bound by the judgment for partition.
    This was a writ of entry sur disseisin, wherein the said Cook demanded against the said Allen certain land in Sandford, and whereupon he said that, within thirty years last past, in a time of peace, he was seised of the demanded premises in his demesne as of fee, taking the profits, &c., — yet the said Allen had within that time unjustly, and without judgment of law, disseised him thereof, &c.
    As to a part of the land demanded, (describing it by metes and bounds,) the tenant pleads that he never disseised, &c. — and as to the residue, a disclaimer. Upon the first plea the demandant joins issue. To the second he replies that the tenant was in possession, and tenders an issue to the country, which is joined. Upon both issues the jury gave a verdict for the tenant.
    At the trial before Thatcher, J., at October term [ *463 ] A. D. * 1805, the demandant, in support of the action gave in evidence the proceedings of this Court upon a petition of Joseph S. Reed, for partition, in the year 1800, wherein he prayed for one thousand acres of land to be set off to him in severalty out of a tract of nineteen thousand- acres, which one thousand acres- he alleged that he held in common, and undivided, with others to him unknown. Upon this petition the Court ordered notice thereof to be given to all persons interested, to appear and show cause why the prayer thereof should not be granted, pursuant to the provisions of the statute for the more easy partition of lánds, or other real estate, passed March 11, 1784; which order having been duly executed, and proclamation made in open Court, and nc person appearing, partition was decreed and made. It was then shown that the land demanded in this action, and to which the tenant had pleaded mil disseisin, was assigned to Reed by the commissioners appointed by the Court to make the partition ; and that Reed had conveyed the same to the demandant.
    The tenant set up a title under one Jonathan Frye, who entered thereon upwards of thirty years ago, and continued to hold and occupy it until the present tenant recovered seisin and possession thereof in virtue of a mortgage made by Frye to him, dated November 12, 1787, which mortgage was foreclosed, and the tenant has ever since possessed the same.
    The judge who sat in the trial directed the jury that neithet the process upon Reed’s petition, nor the deed of Reed, to the demandant, could in law be of any operation, as they respected the title of Allen, the present tenant of the land.
    To this direction the demandant’s counsel made exceptions pursuant to the statute, and the cause was argued upon the validity of the exceptions at the adjourned term in July last.
    It was suggested by the Court that the only question in the eause arose on the effect of the proceedings on Reed’s petition for partition; and the counsel were requested to confine their observations to that point.
    
      For the demandant,
    
    it was contended that the process of partition under our statutes was conclusive, as to the right of possession, * on all persons claiming to hold, in severalty, [ * 464 ] any part of the land described in the petition. It is in the place of the writ of partition at the. common law, and has a more extensive operation. The writ of partition binds only the parties named in it; but in this process the petitioner is not held to name the other tenants, but shall have partition and his purparty set off to him in severalty, upon inserting the substance of his petition (in which he is not held to name any of his co-tenants) three weeks successively in one or more of the public newspapers, as the Court shall order. This notice the statute makes equivalent to a personal service on the several persons “ interested in such estate, and living within the state, or the attorneys of such as are absent, and have attorneys residing in the state.”
    It is true, the law compels no person claiming the land to come in and contest the petition ; neither is a defendant in a civil action compellable to come into court and plead to such action. But in either case he must abide the consequence of his negligence.
    The provision of the statute for the appointment of guardians for infants, and persons non compos mentis, and of agents for others who are absent, shows the contemplation of the legislature that all persons interested in the estate are bound by this process, which the act in fact declares “ shall be valid and effectual to all intents and purposesIt was not possible to use stronger language.
    But it appears, in truth, that Allen had personal notice of the pendency of this process. He was upon the land, in the open and avowed possession of a portion of it, and the commissioners return that they gave notice to all persons interested. He might have been heard in Court upon his claim to this parcel of the land, or he might at least have been heard by the commissioners, if he had chosen to say, “This land I claim to hold in severalty. It will be expedient for Mr. Reed to take his share in some other part of the nineteen thousand acres, where he may meet with no opposition.” But he prefers to lie by until the right of entry is taken away by lapse of time,' and then to set up his claim against an individual proprietor, rather than against * the tenants [ * 465 ] in common. His thus lying by affords a powerful presumption that he was sensible of the defect of his title.
    In the case where non-resident proprietors of land neglect the payment of taxes, the collector is directed to give public notice of the time and place appointed for the sale of the land for such neglect, and is then authorized to sell it; and, if the proprietor neglects to redeem it for a year, the estate is completely gone from him. No personal notice is required, yet all persons interested in the land are bound by the collector’s sale.
    
      For the tenant,
    it was argued that the operation of the statutes for the more easy partition of lands was confined to the co-tenants, who are estopped, after due process under these statutes, from contesting the share or purparty claimed by the petitioner. The object of the áct, and of the process under it, is merely to turn an estate in common into an estate in severalty: neither one nor the other were ever considered as furnishing a method of establishing or of trying the right of a tenant in common as against one holding under a title adverse to that of the tenants in common.
    A judgment of Court binds only parties and privies. Allen was no party to this judgment, for he claimed nothing as tenant in common. Had he been named in the petition as a person inter ested in the land, and personal notice been given him, there might have been a pretence for considering him as a privy. But the whole purpose of the process being to effect a partition of the estate held in common, the tenants in common were the only parties to the process, and notice to all parties interested must be understood to imply notice to the co-tenants alone. If personal notice had been given to' Allen, he might very properly have said, “ I have no interest in this proceeding; I do not claim to hold in common with the petitioner it is no interest of mine to prevent him from taking his share in severalty; my title is different from, and adverse to, all the tenants in common; my dispute is with them, and not with Mr. Reed.”
    
    The preambles to the two statutes on this subject t *466 ] afford a * strong, if not irresistible, argument that they were intended to operate on the tenants in commoi alone. The first describes the inconvenience to be remedied to be. that “ the partition of lands, &c., among the persons interested, though much desired and of great advantage, is often hindered and delayed by reason that infants are interested, or that the parties concerned are numerous, and live remote from each other, and sometimes in parts beyond seas, and are some of them unknown.” The second,  which is merely supplementary to the former, recites in its preamble, that “ no provision is made,” by the first, “ for determining the material facts set forth in the petition for partition, ir case the same are controverted by any of the tenants in common.” The act then provides for the case of a controversy among the tenants in common, and gives directions as to the trial; but in no part of this or the former statute is there any provision for a stranger, who claims to hold under a title adverse to the tenants in common, to come in and contest the right of the petitioner to have partition.
    If, then, there is by the statutes no provision for a stranger to the estate in comm >n, claiming under a different title, to come in and contest the petitioner’s right, the public notice for all persons interested to appear and show cause, &.C., can have no operation on such stranger. Even a personal service upon him would be nugatory, and of no avail.
    If partition had been made, by deed, by consent of all the tenants m common, such partition could have no effect on a stranger to the estate in common; and the sole intent of th'e statutes is to provide a mode of partition in cases where some of the tenants may be under a legal disability, unknown, or beyond the reach of the process of the court. The expression in the former statute, that partition so made shall be “ valid and effectual to all intents and purposes” can by no construction be made to intend any thing more than the intents and purposes of the statute, which was the partition of such lands or other real estate as were the property, and actually in the possession, of the tenants in common.
    * If the rights of a stranger are to be bound by this [ * 467 ] process, the general policy of the law would require personal notice to be given to such stranger. It would be strange that the newspaper notice, which may never have reached him, should operate to divest him of his property.
    
      For the demandant, in reply,
    
    it was observed that there was nothing in the case to show that Frye claimed under a title adverse to the tenants in common. For aught which appears to the contrary, his claim might be as one of the tenants in common, in which case it is agreed he, or his assignee, would be bound by the partition. The first evidence there was of his claiming a several estate was the making the mortgage to Allen, the present tenant. The legislature having prescribed the mode of notifying all parties, they are bound by it,. The arguments of the counsel for the tenant are directed to show the inconvenience of the law, rather than to construe its provisions as favorable to the point they would establish. Such arguments may very properly be addressed to the legislature, but cannot operate in a judicial court. But the inconveniences arising on their construction of the statutes are greater than on the construction they oppose. The petitioner, who has his purparty assigned to him, and is afterwards evicted by a paramount title, has no method provided for him to obtain an equivalent from the remaining estate •n common ; or if he had, yet the estate may all have been divided previous to such eviction.
    
      
       Passed February 14, 1787
    
   ■ The cause was then continued by the Court for advisement, and now at this term the following opinion was delivered by

Parsons, C. J.

This action is on a writ of entry sur disseisin in the quibus, in which the demandant demands of the tenant seisin of 78 acres and 44 rods of land. The tenant, as to part, pleads nul disseisin, on which issue is joined ; and as to the residue, he pleads non-tenure with disclaimer, which is traversed by the demandant, and issue joined. On the trial, both the issues are found [ * 468 ] for the tenant. The direction of the judge * before whom the issues were tried is excepted against, and me cause is before us to decide on the validity of the exception.

If the record' of the partition, which the demandant gave in evidence to the jury, was conclusive against the tenant in this action, the direction was wrong; if it was not conclusive, the verdict must stand.

It appears that Reed, from whom the demandant derives his title, filed his petition for partition, alleging that he was seised as a tenant in common, with divers persons to him, unknown, of 1000 acres of a large parcel of land described in his petition, in which are comprehended the premises in dispute, and praying that partition might be made. Notice of the petition was given to . all persons interested, that they might show cause against granting the prayer of it. After-wards, on proclamation being made for any person to appear and show cause, no person appeared, and the first judgment, quad partido fiat, was entered. Pursuant to this judgment, Reed’s purparty was regularly set out and assigned to him, which included the premises; and a final judgment was rendered, that he and his heirs hold the part thus assigned, in severalty, forever. And the partition thus made has been duly recorded.

The tenant, to defeat this title, gave in evidence the entry of one Jonathan Frye into the lands described in his first plea, more than thirty years past; that he afterwards mortgaged them to the present tenant, who foreclosed the mortgage, by judgment and execution, according to the statute in such case provided, — and that he, the tenant, has continued in the possession thereof ever since. From this evidence, he insisted that Reed and the other tenants in common were disseised by Frye; that, at the time of partition, their right to enter was gone; and that he, not appearing to defend against Reedis petition, and not claiming as a tenant in common, was not concluded by the judgment on that petition, even as to the right of possession. Of this opinion was the judge, who directed the jury accordingly. To this direction the exception is filed.

The question is, whether the record of partition made upon Reed’s petition concludes the tenant in this action, in which * the jus possessions only is to be tried. As this [ *469 ] partition was not made by writ, according to the course of the common law, but by virtue of the statute of March 11, 1784, the validity and effect of it must depend upon the construction of that statute.

A writ of partition must name all the tenants, who hold together and undivided, either as plaintiffs or defendants ; the shares of each must be alleged; and partition must be made among them all. In this state very large parcels of land are holden in common, the tenants are numerous, and frequently unknown to each other, and their shares unascertainable. Partition, so necessary for the settlement and cultivation of the lands, is therefore impracticable by writ at common law. Inconveniences of this kind heretofore prevailed in England, and'they were remedied by an act of Parliament passed 8 and 9 Will. 3, c. 31. This act, after providing that to a writ of partition no plea in abatement shall be received, and that it shall not abate by the death of any of the tenants, enacts that, if any tenant to the writ shall not enter an appearance within fifteen days after the return of the attachment, — notice having been given of such writ by leaving a copy thereof, forty days before the return, with the occupier or tenant in possession, or, if he cannot be found, with his wife, son, or daughter, — the court may proceed to examine the demandant’s title, and give judgment, on default, for his purparty ; and his purparty being regularly assigned by an execution of that judgment, the partition shall be good, and conclude all persons whatever, whatever right or title they had to the premises, although all persons concerned were not named in any of the proceedings, nor the title of the tenants truly set forth ; and a power is given to the court, within a limited time, to permit a tenant against whom judgment has been rendered by default to plead in bar, or to show an inequality in the partition.

The inconveniences of partition by writ, according to the course of the common law, were, in this state, remedied by a temporary provincial act, passed 22 G. 2, c. 3. This act, after * several continuances, expired, but its provisions were [ *470 ] reenacted, with some new regulations, by the statute first mentioned, and which is the foundation of the partition in the case.

By virtue of this statute, a person interested with others in land may file his petition, showing his purparty, and that otheis (naming them) hold the premises together and undivided with him, and may pray for the severance of his purparty. Of'this petition, those others named are to be notified personally, or by leaving a copy of it at their last place of abode, if practicable.

If the petitioner does not know the co-tenants, he may allege that he holds his purparty, together and undivided, with others to him unknown. In this case notice is to be given to all persons interested, by publishing the substance of the petition, three weeks successively, in one or more of the public newspapers, as the court shall direct. If partition be regularly made, pursuant to the peti tian, it is declared to be valid to all intents and purposes, which words are of as large import as the provision of the English statute, where the partition is declared to conclude all persons whatever, whatever may be their right or title to the premises.

But it is reasonable to give the words a construction by which no person shall be concluded by a partition, when he could not, by law, be admitted to defend his rights. This construction is conformable to a maxim of the common law, that judgments do not bind the rights of any but parties or privies; understanding, by-parties, all persons who might have been parties on the record but from their own loches.

In applying this construction to the statute before us, when in the petition certain persons are named as the co-tenants, if partition be made, none are concluded by it but the persons named, their heirs and assigns. If in the petition the co-tenants are not named, but are supposed to be persons unknown to the petitioner, and notice is given to all persons interested to appear and show cause against the petition, and partition be made, no person appearing,— this partition shall conclude all persons whatever, as to [ *471 ] their right of possession. Any person * interested was authorized to appear, and, by falsifying any allegation of the petition in a point material to his defence, might have protected his interest. But if he will lie by, and refuse to appear, it is a consent that the petitioner may proceed ex parte; and he shall be bound by the partition as fully as if he had appeared, and after-wards made default.

In a writ of partition, the plaintiff alleges that all the parties to the writ hold together and undivided; so in the petition, where the co-tenants are not known or named, the petitioner, by declaring that he is seised of an undivided share of the land, in effect alleges that all persons holding the land, or any part of it, are seised as co-tenants with him; and when judgment is rendered in partition, all the allegations material to the rendition of the judgment are to be considered as facts, and all persons concluded by the judgment are estopped from controverting them. In this case, therefore Allen, the tenant, cannot be admitted, by showing a disseisin of all the tenants in common, to question the right of Reed, alleged in his petition, and supported by the judgment; as he cannot be con sidered as a stranger to the record, and so not bound by it. He was on the land at the time of the partition, claiming an interest in it; he was notified to appear and defend his interest; he might have appeared, and have been admitted a party on the record ; he did not choose to do it; and it is owing to his own loches that he did not defend his interest, if he had any to defend. To consider him, under these circumstances, as a stranger to the record, is repugnant to a well-known rule of law ; for he would take advantage of his own loches.

The remaining objection made by the tenant against the effect of the partition is that, upon the true construction of the statute, the right of possession of no person is, in fact, bound by any proceedings under it, but a tenant in common. .

It is a sufficient answer to this objection, in this case, that, the tenant having been notified of the petition, in which it appears that the petitioner claimed to hold with him, together and undivided, the premises ; and having a legal right to appear and conti overt the petition, and judgment being rendered on *his default, he is now concluded from saying that he [ *472 ] is not a tenant in common.

The objection is supposed to rest, not on any expressions in the statute we have mentioned, but on the provisions of an additional act, passed February 14, 1787. In the consideration of these statutes, we ought to construe them liberally, that the remedy may be as extensive as the mischief. • The statute of 1784 gives the remedy by petition to any person or persons interested in real estate with others. Therefore a parcener, joint-tenant, or tenant in common, is entitled to this remedy. The act contemplates the case when all the parties in interest are not known ; consequently, they may be made parties, not only by describing them by their names, but by a description of their interest in the land, according to the petitioner’s claim. As the statute contemplates a case where the parties are unknown, it must extend to a case where the particular interests or rights of the parties are unknown. It is therefore enough for the petitioner to show his own fight, not being conusant of the rights of others. And the showing of his own rght to be an undivided interest in all the land amounts to an allegation that all persons holding the land, or any part of it, hold it together and undivided with him. If any man holding the land, or any part of it, by a sole seisin, is named a defendant in a writ of partition at common law, or in a petition on the statute, and, afte' service of the process, is defaulted, — there can be no doubt that his right of possession would be concluded by the judgment. In this case, the tenant being described by his interest in the land, according to the petitioner’s claim of title, and process being served op him, —if he be not bound by the judgment, the remedy, where most necessary, and where the mischief is irremediable at common law, would be, at the least, useless — perhaps it would be injurious to the petitioner. Having obtained partition, he certainly would be bound by the judgment with respect to all who hold together with him. But if no right of possession, in the part severed, passed to him, his entry, although by judgment of law, would be tortious • and he could have no new partition, as there would be no eviction of him by an elder title, he never having a freehold in [ * 473 ] the part * severed, by force of the partition. But if a right of possession passed by the judgment, so that he became sole seised under it, then, if the owner should bring his writ of right, and evict him by a title paramount, he would be entitled to a new partition of the residue.

This reasoning is confirmed by the consideration that all the proceedings under this act, until the passing of the additional act, were merely amicable. If any person, claiming an interest of any kind in the land, had come into Court, and controverted any material allegation of the petition, all further proceedings were stayed, and. the petitioner was driven to his writ of partition, or rather must have been deprived of any partition. By the additional act, if any material allegation in the petition be denied, an issue in -law or fact may be joined and regularly tried; and if it be determined in favor of the petitioner’s right, he shall have judgment for partition, with costs.

But it is urged that the additional act authorizes only a tenant in common to controvert the petition. If these words are taken strictly, then the act does not extend to the case of joint-tenants or parceners. But taking the two statutes together, and considering that it was the intent of the last statute to change the amicable remedy, given by the first act, into an adversary suit, we are satisfied that any person, who is described in the petition as holding the land together and undivided with the petitioner, and as such is notified to appear and answer, may controvert any material allega tian of the petition, and be permitted to defend his own interest, whatever may be its nature.

It is also urged that the last act contemplates no other issues in fact, but whether the petitioner holds the same or a less share than he has alleged; and therefore no one can plead to the partition unless he admit the petitioner to have some undivided interest This reasoning is founded on a mistake of the intent of the statute By the first paragraph, any plea may be filed on which an issue in fact or in law may arise; and the provision of the statute, when the petitioner is found to have a less share than he claims, is intended to alter the common * law. At common [*474] law, if, on a writ of partition, the jury had found that the parties held together, but that the plaintiff held a less share than he had claimed, he could have no partition on that writ; but by this provision, if it be found that the petitioner holds a less share than he claimed, he shall have partition according to his right. Upon this construction of the statutes, a complete and reasonable mode of obtaining partition is provided. The petition is the foundation of an adversary suit, in which all persons, having any interest in the land whatever, may appear and defend their interest. And the judgment has the same effect as a judgment on a writ; it binds the right of possession of those persons only who are, or might have been, parties to the writ. If any man suffers by the judgment, he suffers by his own loches.

In a writ of partition at common law, the general issue is, that the parties do not hold together, in manner and form, &c.; and as partition must be made among all the parties, the jury are to inquire of the share of each party. If, in a suit by petition, the co-tenants are all named, the plea as at common law is proper ; but as' the petitioner’s share only is to be severed, the inquiry of the jury, if the issue be joined, is confined to the ascertaining of his share; and the jury may find that the petitioner is seised of an undivided interest in all the land, or in part of it only, or in no part of it j or, if seised of any part, that he is seised of a less share than he claims, — according to the evidence in the cause. If the parties interested are not known, any person concerned in interest may appear and plead ; but the plea must conform to the petition, and the same inquiry must be made by the jury, if the issue be joined. In this last case, as it was not the intent of the statute that the title of the petitioner should be controverted by any stranger in interest, to this plea the petitioner may reply, that the party pleading it has no estate or interest in the lands described, and may pray judgment, if he shall be received to defend against the petition. And if an issue in fact be joined on this replication, and Tied, the verdict will be conclusive as to both parlies.

*The result of this construction, which we are satis- [ * 475 ] fled ought to be given to these statutes, is that the verdict must be set aside, and a

New trial granted

Holmes and Emery for the demandant.

The Solicitor-General and Mellen for the tenant.

[Note. — The Chief Justice observed, that the opinion delivered, as to the effect of the partition, was grounded on the presumption that the process was regular in all its parts, and particularly that the petition contained such a description of the land, alleged to be holden in common, that every person residing upon, or interested in, any part of it, might clearly apprehend that the general description comprehended such part. As no exception was taken, on this ground, to the proceedings given in evidence in the case at bar, the Court presumed them to have been sufficiently regular in this respect.] 
      
       Vide Pierce vs. Oliver & Al. 13 Mass. Rep. 311
     