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Browsing: Legal Papers of John Adams, Volume 1

This foot note contained in document ADMS-05-01-02-0006-0004-0001
3. Act of 14 July 1693, c. 8, §1, 1 A&R 122. For the will, see No. 15, note 1. The declaration set out
“a plea of partition, for that one Samuel Clap late of said Scituate yeoman deceased, in his life time, in a time of peace, in the sixth year of our reign, was seized in his demesne as of fee, of two parcels of land [description], taking the esplees thereof to the amount of three pounds lawful money by the year. And on the eighth day of December 1766, the same Samuel dyed so seized at said Scituate, and intestate, leaving the above named [defendants] his only surviving children, and the plaintiff, his grandson, the only child of Michael Clap late of said Scituate yeoman deceased, who was the eldest son of the said Samuel the intestate, and died on [the] tenth of June 2d. 1760. Whereupon at the death of the said Samuel, the intestate, the premises by the law of our province of the Massachusetts Bay, descended to the plaintiff [and the defendants], the only heirs of the said Samuel the intestate, to wit two fifth parts thereof to the plaintiff, the only child and legal representative of the said Michael, deceased, the eldest son of the said intestate, and one fifth part thereof to [each of the defendants], and they and the plaintiff are accordingly seized of the same two parcels of land in their demesne as of fee, and do hold the same together in common and undivided. Whereof it appertains that the plaintiff [and the defendants] ought to hold, possess, and enjoy their respective parts thereof in severalty.... Yet [the defendants] tho' often requested, do utterly refuse to divide or make partition of the same parcels of land, that so they, and the plaintiff, may hold and enjoy their respective parts and interest in the premises in severalty as aforesaid, contrary to the said law of the said province in that case made and provided, and to the damage of the said Michael Clap as he by his said guardian saith, the sum of forty pounds.” SF 142299.
Under the Province intestacy law (note 1 above) the eldest son took a double share. In England partition lay among coparceners (cotenants by inheritance) at common law, and among joint tenants and tenants in common by statute. See 6 Dane, Abridgment 478–480; 3 Holdsworth, History of English Law 19. The Province Act of 1693, 1 A&R 122, cited above, established the writ of partition as an action at law for all three classes of cotenancy. Note that the declaration used here states the title of the cotenants in the form followed in real actions, although it was apparently the rule in partition that title could be stated briefly, as being “of the inheritance of” the predecessor, since the action was for possession, not property. See Fitzherbert, New Natura Brevium 142 note (London, 1755); 16 Viner, Abridgment 240; see also Perham, American Precedents 313–314 (1802). As to the form in real actions, see Charles Jackson, A Treatise on the Pleadings and Practice in Real Actions 348 (Boston, 1828); No. 17, notes 4–6 4, 5, and 6 ; p. 36, notes 13, 14 29, 30 . Although in form the writ sought damages, it was the rule at common law that no damages would be awarded, and that the judgment was in fact for partition. See 16 Viner, Abridgment 236–237, 240; 6 Dane, Abridgment 491. The procedure followed in this case is to be distinguished from the proceeding by original petition in the Superior Court, provided by Act of 1 Feb. 1749, c. 12, 3 A&R 426–428. The latter was not an adversary proceeding, no provision being made for trial of issues under it. In 1787 the defect was remedied by a provision for pleading and trial to a jury in such cases. See 6 Dane, Abridgment 483.