
    Ariel Cook versus Matthew Davenport.
    The conveyance by an heir of his purparty of the estate of his ancestor to a stranger, pending a commission from the Probate Court for partition, did not avoid the commission before the statute of 1817, c. 190.
    Trespass guare clausum fregit, the close being described in the declaration. The defendant pleaded, 1. The general issue. 2. That the soil and freehold of the close described was in Addingtm Davenport, a minor, and others, as tenants in common; and that he entered, and did the several acts complained of, as the servant, and by the command of the guardian of the said Addington. Issue was joined upon the question of the soil and freehold in him, and came on for trial at the last April term, before the chief justice.
    It was agreed or proved that the locus in quo was parcel of a large tract of land formerly belonging to Matthew Davenport, father of the defendant and of Nathaniel D., and grandfather of the said Addington. The said Matthew, in his * life- [ * 346 ] time, conveyed to his five sons one undivided moiety of the said tract, and afterwards died seised of the other moiety, leav ing seven heirs at law to the same.
    In November, 1815, a commission issued from the Probate Court for dividing the estate, of which the said Matthew died seised, among his heirs; first setting off the moiety, which had been conveyed by the deceased to his five sons. This commission was executed and returned on the 21st of December, 1815, but was not accepted and allowed by the judge of probate until the 6th of May, 1817.
    On the 9th of April, 1816, Nathaniel D. conveyed to the defendant that part of the estate of their father which was assigned by the commissioners to him, being the locus in quo, and which was after-wards duly set off to the plaintiff upon execution, as the property of the defendant.
    In March, 1816, the said Nathaniel and Matthew, and two others of the heirs of the said Matthew, deceased, preferred a petition to the Court of Common Pleas, praying for partition of one undivided fifth part of one moiety, and of one undivided seventh part of the other moiety, to each of the petitioners, of the said tract of land formerly belonging to the said Matthew. Commissioners, appointed pursuant to said petition, divided among the petitioners their respective fifth parts of the moiety conveyed by the deceased, but did not divide the other moiety of which the deceased died seised.
    If, by virtue of either or both of the said partitions, the locus in quo was legally assigned and set off to the said Nathaniel in severalty, the defendant was to be defaulted, and judgment was to be rendered for a sum agreed by the parties, with costs; otherwise the plaintiff was to become nonsuit.
    
      Newton, for the defendant,
    insisted that, although the judge of probate had legal authority to issue his commission at the time he did, yet one of the heirs having transferred his purparty before the commission was accepted and allowed by the judge, his authority
    
      [ * 347 ] was gone, and the * execution of the commission became null and void. Partition is not completed until accepted and allowed by the judge . The process in the Probate Court being pending when the petition was preferred to the Court of Common Pleas, jurisdiction of the subject matter had attached to the former court, by which the latter was ousted of its cognizance.
    
      Lincoln, for the plaintiff.
    
      
       13 Mass. Rep. 413, Pond & Al. vs. Pond & Al.
      
    
   Curia.

The principal point relied on in this case for the defendant is, that after the issuing of the commission from the probate office for partition among the heirs, and before the return of the commissioners, the jurisdiction of the judge was ousted by the conveyance of one of the heirs, of his share in the inheritance; and the case of Pond & Al. vs. Pond & Al. was relied on to maintain this position. But in that case the conveyance was made before the proceedings were instituted; so that there was no jurisdiction at that time. In the present case there was jurisdiction when the process commenced; and it was not competent to any of the heirs to defeat a process, to the prejudice of the others, by parting with his interest. In such case the commission must pro ceed; and the purchaser will hold, by virtue of his conveyance, what shall be set off as belonging to his grantor.

Defendant defaulted  