Blaisdell v. Pray

• Decision Date: 07 June 1878
• Citation: 68 Me. 269
• Parties: Samuel BLAISDELL et al., petitioners for partition, v. Henry E. PRAY et als.
• Court: Maine Supreme Court

68 Me. 269

Samuel BLAISDELL et al., petitioners for partition, v. Henry E. PRAY et als.

Supreme Judicial Court of Maine.

June 7, 1878

ON REPORT.

PETITION FOR PARTITION.

G. T Stevens, for the petitioners.

E. F Webb, for the respondents.

BARROWS J.

The petitioners, Blaisdell & Hallett, levied an execution, issued upon a judgment recovered by them against Motley & Pray, upon 307-720ths of an undivided fifth of a farm formerly owned by the father of the judgment debtor, Pray, and here claim partition of the same, alleging that the tenants in common are the late firm of Leonard & Hallett jointly seized of 413-720ths of an undivided fifth, and the respondents brothers and sisters of said Pray, each seized of one undivided fifth, the whole being subject to the dower hitherto unassigned of one Emeline Pray, widow of said Pray's father, from whom the estate descended to his five children. The respondents in their plea deny the seizin of the petitioners and their interest as tenants in common, alleging that they themselves and the said judgment debtor are sole seized, and denying the seizin of Leonard & Hallett as tenants in common, as well as that of the petitioners.

The papers in the case indicate that the petitioner, Hallett, is the same person who, as member of the firm of Leonard & Hallett, is named as a tenant in common, and the facts and documents reported show that Blaisdell & Hallett and Leonard & Hallett, the levying creditors, attached Pray's interest in real estate at the same moment, and preserved their attachment by levies made at the same time upon the respective portions of his undivided fifth above stated. No question is made as to the regularity of the levies; and Pray's interest in the estate in common with the respondents at the time of the attachment is admitted as alleged. But the respondents resist partition upon these grounds, viz:

I. They claim that the record of the plaintiffs' judgment does not show legal notice to Pray, the judgment debtor, who was out of the state; and hence they claim that the judgment is void, and that the plaintiffs acquired no interest in the premises by virtue of their levy.

II. Because, they say, the process cannot be maintained, when the same person (Hallett) is named both as a petitioner and also as a possible respondent.

III. Because the two creditor firms, attaching at the same moment, took moieties of the estate, and thus the petitioners' interest is not correctly described.

There is no force in the third objection. The doctrine of Shove v. Dow, 13 Mass. 529, obviously is not applicable to cases where, as here, one of the several creditors attaching at the same moment can be and is fully paid with less than the proportion to which he would be entitled in a case of deficiency.

As to the second objection, we remark that Leonard & Hallett do not resist the proposed petition and are defaulted. The respondents seek to defeat the petitioners upon the technical ground that according to their own showing two copartnerships, having a common member, are interested as tenants in common in the estate to be divided, and they invoke the principle that one and the same person cannot be both plaintiff and defendant in an action at law. No doubt this is true where there is a contract to be enforced or a wrong redressed by suit. Denny v. Metcalf, 28 Me. 389.

But it may well be doubted whether it can properly be applied to this statute process for the division of property among tenants in common. This is not necessarily in any proper sense an adversary proceeding. Petitioners may join or sever, and have their shares set out to them in severalty, or to be held as between themselves in common. Upham v. Bradley, 17 Me. 423, 427. It is often resorted to where there is no difference between the parties as to their rights in the premises, and simply as a means of procuring a judicial confirmation and record of a partition that they in fact make between themselves by the agency of commissioners upon whom they agree. Would the assent of Leonard & Hallett to this proceeding appear any more conclusively if they had joined in this petition than it now does by a default after notice served upon them?

But, however these things may be, under the pleadings in the case before us the objection is not open.

The respondents plead sole seizin in themselves and the judgment debtor, denying the title and seizin of the petitioners and of Leonard & Hallett. The objection that they here propose to set up has nothing to do with either of those matters, but is rather one in the nature of a plea to the ability of the petitioners to prosecute, which should have been taken by plea in abatement, if at all, and cannot now be entertained. Upham v. Bradley, 17 Me. 423, 426.

The fact that Emeline Pray has a right of dower in the whole estate is not a valid objection to the maintenance of the petition. Ward v. Gardner, 112 Mass. 42. But the respondents chiefly rely upon their denial of the petitioners' seizin and title, claiming that the judgment debtor Pray is still tenant in common with them, notwithstanding the levies, on account of the alleged defect in the notice to him to appear and answer to the suit in which the property was attached.

If the judgment of this court in the suit of these petitioners against Pray is void for want of jurisdiction apparent upon its face, the petitioners cannot prevail, because upon their pleadings the burden is upon them to establish their title and interest in the estate, and they must prevail if at all by the strength of their own title and not by the weakness of their adversary. Gilman v. Stetson, 16 Me. 124. Marr v. Hobson, 22 Me. 321.

But it is equally well settled that in the case of a court of general jurisdiction, unless the want of jurisdiction appears by the record itself, the judgment is regarded as valid and binding until reversed, and not liable to be impeached when collaterally attacked; and that for errors arising in the exercise of the jurisdiction, a stranger to the judgment can neither sustain a writ of error nor take advantage of their regularity. Banister v. Higginson, 15 Me. 73, 78. Granger v. Clark, 22 Me. 128, 130. Smith v. Keen, 26 Me. 411, 423.

The judgment debtor of these petitioners, although, if he was not legally divested of his interest in the premises by their proceedings, he might under the provisions of R. S., c. 88, § 5, have been heard in this case, does not present himself to assert any interest therein. Apparently he is satisfied either that there is no error, or he is content to waive errors and allow his debt to stand paid by the levy. His former co-tenants, who assert...