
    Samuel Liscomb et ux. versus Luther Root.
    Where one in possession under a tenant m dower held over after her death and purchased the shares of some of the reversioners and continued in the exclusive possession, but without manifesting an intention to oust the other reversioners, it was held, that his possession was according to the title, and that these reversioners might maintain a petition for partition.
    The respondent in a petition for. partition cannot avail himself of St. 1807, c. 75, (the betterment act,) which allows the tenant, in certain cases, the benefit of improvements made by him upon the land.
    This was a petition for partition of certain land, whereof the petitioners alleged themselves to be seised as tenants in common, namely, Samuel Liscomb and Abba his wife, in her right, of one twentieth part, and Charles A. Thomas, the other petitioner, of one twentieth part.
    The respondent, by plea, denied the seisin of the petitioners ; and issue being joined thereon, the cause was tried before Parker C. J.
    
    
      Sept, 21st.
    
    The petitioners proved, that about fifty years ago, Jacob Gibbs was seised of the land, and died so seised, leaving a widow, one son and three daughters. One of the daughters died in 1812, leaving four children, of whom two were Abba Liscomb and Charles A. Thomas. After the death of Jacob Gibbs, the land was set off to his widow as her dower, and was occupied by her as such until her death, which took place in 1816 ; at which time the respondent was in possession as her lessee.
    The respondent insisted in his defence, that the petitioners were not so seised as to be entitled to maintain this process, he having been in the actual and exclusive possession from the death of the widow to the time of the trial, having made improvements on the land.
    The respondent also filed a claim to a valuation of the land and of the improvements, in order to avail himself of the ben efit of St. 1807, c. 75, if that statute could be executed under this process. The parties determined the value of the land and of the improvements, by an agreement, which was to have the same effect as if the value had been found by verdict.
    If the evidence of seisin of the petitioners was competent to prove that fact, the respondent was to be defaulted, and judgment to be rendered for partition ; unless the respondent could avail himself of the statute of 1807 ; in which case such proceedings were to be had as the Court should deem lawful and proper.
    
      Bates, Dewey and Marcey, for the respondent,
    cited St 1807, c. 75, § 3, and they contended that a petition for partition was “an action for the recovery of land,” within the meaning of that statute. It is a substitute for the writ of partition. St. 1783, c. 41 ; 1786, c. 51. The incidents of an action at law, as giving notice to the adverse party, joining issue, trial by jury, costs, &c. belong to this process. It may be objected that no writ of seisin can issue, and so the remedy given by the statute of 1807 cannot be pursued ; but is not the writ directing the commissioners to set off the petitioner’s share similar to writ of seisin ? An entry may be made on the record, that me petitioner shall not have the land unless he will pay for the improvements. May there not be a conditional judgment, that the commissioners shall set off so much as is equivalent to the petitioner’s share before the improvements were made ? In Bacon v. Callender, 6 Mass. R. 303, the demandant might have brought a petition for partition and thus evaded the betterment act, if the mere change in the form of action is to affect the rights of parties.
    They also urged, but without great confidence, that the petitioners had not shown a seisin sufficient to maintain this process.
    
      J. H. Jlshmun, contra,
    cited on this last point, Barnard v. Pope, 14 Mass. R. 434.
    
      Sept. 24th.
    
   Parker C. J.

delivered the opinion of the Court. In regard to the first question, we think a sufficient seisin is shown to entitle the plaintiffs to maintain this process. It is only when actually ousted, or when there is an avowed adverse possession, that one claiming to be tenant in common is driven to an entry or an action for possession, before he can have partition. In this case the respondent did not hold possession adversely to the title of the petitioners. He first occupied under the tenant in dower, and after her death held over, without manifesting an intention to abate the heirs of the former owner. His possession is to be construed to be according to his rights, he having purchased of some of the heirs ; and his possession is for the benefit of the cotenants, he not having signified an intention to oust the heirs.

And in regard to his claim under what is commonly called the betterment law, it cannot be sustained ; because it does not appear to have been the intent of the legislature to apply that remedy to any cases but those, in which the defendant in the suit had originally entered without title, and held possession six years before the commencement of the suit, adversely to the right owner.

Besides, it is impossible to execute the provisions of that act under this process. The judgment here is for partition only; and the execution of the judgment is the setting off the property belonging to the petitioner. Whereas under the betterment law, there is an election for the demandant; and an execution for money, if he so elects.

Judgment for partition. 
      
       See Miller v. Dennett, 6 N. Hamp. R. 109.
     