The opinion of the Court, Siiepley, Tenney and Wells Justices, sitting in the case, was drawn up by
Shepley J.
The demandants claim to recover one of the lots located for public use in that township. The Commonwealth of Massachusetts, on June 12, 1815, conveyed township numbered three, including the present townships of Argyle and Alton, to the trustees of the literary and theological institution, reserving four lots of three hundred and twenty acres each, for public uses.
By the act approved on March 15, 1821, c. 41, the circuit Court of Common Pleas was authorized on application of the assessors of a town, in which such reservations had been made, and not located, to cause them to be located. By the act ap[42]*42proved on March 17, 1835, c. 170, the assessors of organized plantations were authorized to obtain in like manner a location of the lots reserved within them for public uses.
The Court of Common Pleas on petition of the assessors of the plantation of Argyie, at its session in this county in the month of January, 1838, caused the lots reserved for public uses in that plantation to be located. Two of those lots were thus located within and two without the territory incorporated as the town of Argyie, by the act approved on March 19, 1839, the second section of which provided, that the town should “retain one half of all the public or reserved lands, called the ministerial and school lands, leaving to the west part of said plantation an equal half of said reserved lands, being so located and divided at the time aforesaid.” The time alluded to was the time of the approval of that act. The effect of the act was to sanction the location, which had been made, and to assign to the town of Argyie the benefit of those lots,-which had been thus located within its corporate bounds. The title of the demandants is thus presented.
The tenant claims the lot, first by a petition, proceedings and judgment in partition. He filed a petition, alleging that he was seized of nine hundred and sixty acres, in common and undivided with persons unknown, in township numbered three, describing it. Partition was ordered after due notice, commissioners were appointed, and the lot demanded was assigned to the tenant; and the final judgment establishing the partition was rendered at the session of this Court in this county in the month of June, 1847.
The effect of these proceedings upon the title to the lot must depend upon the provisions of the Revised Statute, c. 12 L. The provisions of the thirty-third section are, “ if any person who has not appeared and answered to the petition for partition, shall claim to hold in severalty the premises described therein or any part thereof, he shall not be concluded by the judgment for partition, but may bring his action for the land claimed, against any or all of the petitioners or respondents, or of the persons holding under them, as the case may require, [43]*43within the same time, in which he might have brought it, if no such judgment for partition had been rendered.” The provisions of the thirty-seventh section are, “ if any person, to whom a share shall have beeii assigned or left, shall be evicted thereof by any person, who at the time of the partition had an elder and better title, than those, who were parties to the judgment, he shall be entitled to a new partition of the residue in like manner, as if no partition had been made.” The language of these sections is too plain to leave the intention and construction doubtful, that the judgment should not be conclusive upon an elder and better title, than that of the person holding by virtue of the partition. The demandants have exhibited a title apparently elder and better, than the tenant can have, unless he a n make a breach upon it. And this, it is contended in tin second place, that he has done.
This branch of his title commences on April 16, 1835, by a vote passed by the trustees of the lands reserved for public uses in the plantation of Argyle, to convey them to Nathan Wins low and Samuel Cony upon certain terms. Those trustees executed a bond, bearing date on April 14, 1835, obliging themselves to convey them on the terms named, within sixty days, to VV mslo v a u C >ny.
On June 13, 1835, the trustees received a note signed by Winslow and Cony and Isaac G. Stevens for $960, bearing date on May 11, 1835, and payable with interest from the fourteenth day of April, preceding. And at their meeting on the same thirteenth day of June, they passed a vote authorizing their treasurer to convey the lands to Winslow and Cony as bonded; and also a vote authorizing him “ if Cony and Wins-low should bring and deliver to him Cyrus Moore’s note, with surety for said sum, payable in said manner, to deed to Moore instead of to Winslow and Cony and to give up then their note and receive Moore’s instead.”
It appears, that Nathaniel Danforth, Jr. then treasurer, made a conveyance of the lands to Cyrus Moore on August 29, 1835, which was recorded May 21, 1836, without receiving any note signed by Moore with surety, and without surrendering the [44]*44nóte signed by Winslow and Cony with Stevens. That Cyrus Moore made a note payable to the treasurer without surety for the same amount, and on July 1, 1836, made a mortgage of the same lands to the treasurer, to secure the payment of it; and that these were left in the possession of Samuel Cony.
There is no proof of any further proceedings, until after the town of Argyle was incorporated by an act approved on March 19, 1839.
On July 13, 1839, the town officers of Argyle, designated by law as trustees of the public lands, and the like officers of the plantation of Argyle composed of the remainder of the township, met together and voted, that their committee be instructed to surrender Samuel Cony’s note, and receive Cyrus Moore’s note and a mortgage, which are lodged in the hands of Samuel Cony, provided they are satisfied, that there is no attachment which will interfere with the security of that mortgage, and if they receive the mortgage to have it put on record immediately. At a meeting of the trustees after the mortgage had been received, they voted to foreclose the same. And at another meeting, held about one year afterward, they passed a similar vote. These proceedings exhibit the title of Moore.
The tenant derives his title from Moore, by an attachment of all Moore’s estate in this county, made on May 3, 1837, by virtue of a writ against him and in favor of Samuel G. Oakes. Judgment was recovered in that suit on April 30, 1845, and an execution, issued thereon, was levied on 960 acres of land in common and undivided, in township numbered three, within thirty days, and the levy was recorded within three months. Samuel G. Oakes by his deed of release conveyed all his interest in the lands levied upon to the tenant on June 4, 1845.
Assuming that the title to the lands reserved for public uses was legally conveyed to Cyrus Moore, if those lands were afterwards legally located, he could no longer have any title to an undivided portion or interest in that township. His title would follow and remain attached to the lands as severed and located in lots. When a person is the owner of an undivided [45]*45portion of lands, holden in common, which portion is severed and set out to be holden in severalty by a legal process and proceedings, his title adheres to and follows the estate and becomes limited by it. Cook v. Davenport, 17 Mass. R. 343; Arms v. Lyman, 5 Pick. 210.
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The opinion of the Court, Siiepley, Tenney and Wells Justices, sitting in the case, was drawn up by
Shepley J.
The demandants claim to recover one of the lots located for public use in that township. The Commonwealth of Massachusetts, on June 12, 1815, conveyed township numbered three, including the present townships of Argyle and Alton, to the trustees of the literary and theological institution, reserving four lots of three hundred and twenty acres each, for public uses.
By the act approved on March 15, 1821, c. 41, the circuit Court of Common Pleas was authorized on application of the assessors of a town, in which such reservations had been made, and not located, to cause them to be located. By the act ap[42]*42proved on March 17, 1835, c. 170, the assessors of organized plantations were authorized to obtain in like manner a location of the lots reserved within them for public uses.
The Court of Common Pleas on petition of the assessors of the plantation of Argyie, at its session in this county in the month of January, 1838, caused the lots reserved for public uses in that plantation to be located. Two of those lots were thus located within and two without the territory incorporated as the town of Argyie, by the act approved on March 19, 1839, the second section of which provided, that the town should “retain one half of all the public or reserved lands, called the ministerial and school lands, leaving to the west part of said plantation an equal half of said reserved lands, being so located and divided at the time aforesaid.” The time alluded to was the time of the approval of that act. The effect of the act was to sanction the location, which had been made, and to assign to the town of Argyie the benefit of those lots,-which had been thus located within its corporate bounds. The title of the demandants is thus presented.
The tenant claims the lot, first by a petition, proceedings and judgment in partition. He filed a petition, alleging that he was seized of nine hundred and sixty acres, in common and undivided with persons unknown, in township numbered three, describing it. Partition was ordered after due notice, commissioners were appointed, and the lot demanded was assigned to the tenant; and the final judgment establishing the partition was rendered at the session of this Court in this county in the month of June, 1847.
The effect of these proceedings upon the title to the lot must depend upon the provisions of the Revised Statute, c. 12 L. The provisions of the thirty-third section are, “ if any person who has not appeared and answered to the petition for partition, shall claim to hold in severalty the premises described therein or any part thereof, he shall not be concluded by the judgment for partition, but may bring his action for the land claimed, against any or all of the petitioners or respondents, or of the persons holding under them, as the case may require, [43]*43within the same time, in which he might have brought it, if no such judgment for partition had been rendered.” The provisions of the thirty-seventh section are, “ if any person, to whom a share shall have beeii assigned or left, shall be evicted thereof by any person, who at the time of the partition had an elder and better title, than those, who were parties to the judgment, he shall be entitled to a new partition of the residue in like manner, as if no partition had been made.” The language of these sections is too plain to leave the intention and construction doubtful, that the judgment should not be conclusive upon an elder and better title, than that of the person holding by virtue of the partition. The demandants have exhibited a title apparently elder and better, than the tenant can have, unless he a n make a breach upon it. And this, it is contended in tin second place, that he has done.
This branch of his title commences on April 16, 1835, by a vote passed by the trustees of the lands reserved for public uses in the plantation of Argyle, to convey them to Nathan Wins low and Samuel Cony upon certain terms. Those trustees executed a bond, bearing date on April 14, 1835, obliging themselves to convey them on the terms named, within sixty days, to VV mslo v a u C >ny.
On June 13, 1835, the trustees received a note signed by Winslow and Cony and Isaac G. Stevens for $960, bearing date on May 11, 1835, and payable with interest from the fourteenth day of April, preceding. And at their meeting on the same thirteenth day of June, they passed a vote authorizing their treasurer to convey the lands to Winslow and Cony as bonded; and also a vote authorizing him “ if Cony and Wins-low should bring and deliver to him Cyrus Moore’s note, with surety for said sum, payable in said manner, to deed to Moore instead of to Winslow and Cony and to give up then their note and receive Moore’s instead.”
It appears, that Nathaniel Danforth, Jr. then treasurer, made a conveyance of the lands to Cyrus Moore on August 29, 1835, which was recorded May 21, 1836, without receiving any note signed by Moore with surety, and without surrendering the [44]*44nóte signed by Winslow and Cony with Stevens. That Cyrus Moore made a note payable to the treasurer without surety for the same amount, and on July 1, 1836, made a mortgage of the same lands to the treasurer, to secure the payment of it; and that these were left in the possession of Samuel Cony.
There is no proof of any further proceedings, until after the town of Argyle was incorporated by an act approved on March 19, 1839.
On July 13, 1839, the town officers of Argyle, designated by law as trustees of the public lands, and the like officers of the plantation of Argyle composed of the remainder of the township, met together and voted, that their committee be instructed to surrender Samuel Cony’s note, and receive Cyrus Moore’s note and a mortgage, which are lodged in the hands of Samuel Cony, provided they are satisfied, that there is no attachment which will interfere with the security of that mortgage, and if they receive the mortgage to have it put on record immediately. At a meeting of the trustees after the mortgage had been received, they voted to foreclose the same. And at another meeting, held about one year afterward, they passed a similar vote. These proceedings exhibit the title of Moore.
The tenant derives his title from Moore, by an attachment of all Moore’s estate in this county, made on May 3, 1837, by virtue of a writ against him and in favor of Samuel G. Oakes. Judgment was recovered in that suit on April 30, 1845, and an execution, issued thereon, was levied on 960 acres of land in common and undivided, in township numbered three, within thirty days, and the levy was recorded within three months. Samuel G. Oakes by his deed of release conveyed all his interest in the lands levied upon to the tenant on June 4, 1845.
Assuming that the title to the lands reserved for public uses was legally conveyed to Cyrus Moore, if those lands were afterwards legally located, he could no longer have any title to an undivided portion or interest in that township. His title would follow and remain attached to the lands as severed and located in lots. When a person is the owner of an undivided [45]*45portion of lands, holden in common, which portion is severed and set out to be holden in severalty by a legal process and proceedings, his title adheres to and follows the estate and becomes limited by it. Cook v. Davenport, 17 Mass. R. 343; Arms v. Lyman, 5 Pick. 210.
The lands appear to have been located on the application of the assessors of the plantation in the manner prescribed by law. The fact, that they had been sold and conveyed could not prevent their legal location. No title could be conveyed, which would deprive the State of its right to cause the lands reserved to be located. This right it had not surrendered. The grantee could only acquire the title subject to it. He could not insist upon their remaining in common and unlocated. The State by the act incorporating the town of Argyle had sanctioned the location of the lots.
The attachment made of Moore’s estate created a lien upon it, which, like a lien by judgment, followed the title and became a lien on the lots located. Bavington v. Clarke, 2 Penn. 115.
The levy was not made upon the lots located, but upon an undivided portion of township numbered three. Moore before that time had ceased to be the owner of any undivided interest in that township, and the levy could convey no such title to Oakes. The levy to convey Moore’s title should have been made upon the lots located for public uses.
When a creditor attaches the estate of his debtor held in common with others, that cannot prevent the other part owners from procuring a legal partition of the estate. Nor will such partition vacate or destroy the attachment, which will remain as a lien on that part of it set off to the debtor. And if the attachment be followed by a judgment, execution and levy ; that levy cannot be legally made upon the debtor’s estate, as a common and undivided estate, in disregard of the rights of others legally acquired. To be effectual to convey the title, it must be made upon the estate assigned to the debtor to be held in severalty.
So in this case by the location of the lauds reserved for public [46]*46uses, all the owners of other lots and lands in the township became entitled to hold them not in common, subject to have them taken or diminished by a future division and assignment of the public lots. This right to hold their lots could not be affected by any attachment or levy made upon the reserved lands. The levy made by virtue of the execution, Oakes against Moore, being void, the tenant fails to have obtained any title under Moore.
The demandants however can only recover upon the strength of their own title. Danforth, the treasurer of the trustees, was not authorized by their vote to convey the lands to Moore without receiving his note with surety instead of the note of Winslow and Cony with Stevens. He made the conveyance to Moore without authority. It is contended, as he was authorized to convey to Winslow and Cony, that a conveyance to Moore would be good under that authority ; and the case of Williston v. Morse, 10 Metc. 17, is cited to sustain the position. The cases are not similar. In that case the conveyance was made to another than the best bidder by his consent. The owners of the estate could not be injured by it. In this case the consideration of the note of Winslow and Cony with Stevens was the conveyance of the lands to them. A conveyance of the lands to Moore, without their consent, would deprive them of that consideration and the note would be of no value. No inference is authorized by the facts proved, that they assented without a surrender of their note. Such a con veyance by the treasurer, made without having any security, which could be legally enforced, would not be authorized.
The subsequent proceedings of the two boards of trustees might be sufficient to ratify that sale, if they could legally act in that manner. As their power was conferred by statute, it could be legally executed only in accordance with its provisions. Their acts, performed in a manner not authorized, would be inoperative. Tenant defaulted.