Hunnewell v. Taylor

69 Mass. 111

Opinion

Metcalf, J.

The question now raised is this: Can a petitioner, who holds two parcels of land in different proportions, one as co-tenant with A, and the other as co-tenant with A, B and C, have judgment for partition of both, on one petition? And we have no doubt that he cannot. Nor could he, even if he owned the same proportional part in each parcel. If he holds, with the same co-tenant or co-tenants, different parcels, in different proportions—as half of one and two thirds of another —he may have partition of both on one petition. Halton v. Earl of Thanet, 2 W. Bl. 1134, 1159. In such a case there would be no misjoinder. But by the amendment which this petitioner has made of his petition, there is a misjoinder which must defeat him. The holder of a note against A, and also a note against A, B and C, might as well bring one action on both notes, and recover judgment thereon.

The cases cited by the respondents’ counsel, from the Vermont and Indiana reports, show that the point which we now decide has been decided in the same way by the courts of those States. Brownell v. Bradley, 16 Verm. 105. Kitchen v. Sheets, 1 Carter, 138.

The petitioner may have leave to amend again, by asking for partition of one only of the parcels. If he desires partition of the other, he must file a separate petition.