It appears from the finding that at the commencement of this action the plaintiffs were not in possession of the land described, and that for sometime before there had been a constant, actual ouster of the plaintiffs by the defendant and its predecessors in title. The defendant, therefore, upon the facts put in issue by the first defense and found by the Superior Court, is entitled to judgment, and it is needless to consider the second defense. *Page 420
The action is brought under § 1307 of the General Statutes of 1888 (Rev. 1902, § 1037). This section was first passed in 1848. Pub. Acts of 1848, p. 49, Chap. 59. The first section of that Act provided that the Superior Court as a court of equity might order the partition of any real estate held in joint tenancy, tenancy in common, or co-parcenary; and the second section provided that the court might "upon the petition of any person interested, order the sale of any real estate holden in joint tenancy, tenancy in common, or co-parcenary, whenever, in the opinion of the court, a sale will better promote the interests of all parties than a partition." Comp. 1854, p. 480, §§ 35, 36. The second section was modified in 1852, 1853 and 1858, and in the Revision of 1875 (p. 481, § 4) appears as follows: "Courts of equity may, upon the petition of any person interested, order the sale of any estate, real or personal, owned by two or more persons, when, in the opinion of the court, a sale will better promote the interests of the owners." This section appears, unaltered, as § 1307 in the General Statutes of 1888. The meaning of this legislation, in so far as it affects the sale of land owned by two or more persons, has been settled. InJohnson v. Olmsted, 49 Conn. 509, 517, it was held that the power to order a sale in such case rested on the same ground as the power to order a partition, and was an alternative mode of relief in cases where an owner was entitled to partition and partition was not practicable. An owner applying for a sale assumed the burden of proving partition impossible, and if upon such application the impossibility of partition is proven, the court is as much bound to order a sale as it would have been to order a partition, upon prayer for it and proof that it could have been conveniently and equitably made. The statute giving the power of sale introduces no new principle into the law regulating partition of estates held in common. Richardson v. Monson, 23 Conn. 94; Vail v. Hammond, 60 id. 374, 379.
The complaint alleges (1) that the plaintiffs and defendant are in possession of the locus as tenants in common; (2) that the plaintiffs are owners of an undivided two thirds *Page 421 and the defendant of an undivided one third; (3) that a sale would better promote the interests of the parties than partition. The first defense denies each of these allegations. The third allegation is immaterial unless the first two are proved. The second allegation is immaterial unless the first is proved. In other words, a person actually ousted of possession by one he claims to be tenant in common with him of land, cannot, under this statute, seek a court of equity for the purpose of establishing his title and regaining his possession, and thereupon obtaining a decree of partition and sale. This was clearly the rule at common law, and our statute in enlarging the jurisdiction of the court of equity for the purpose of partition and sale introduced no new principle. Partition now, as heretofore, affords relief against a compulsory common ownership, but cannot be used to supplant the remedy at law against an actual disseisor. A person claiming to own land as tenant in common with others, but who has been actually ousted, must establish a unity of possession before he can ask a dissolution of that unity by partition. 1 Sw. Dig., s. p. 103. This was settled in Adam v. Ames Iron Co., 24 Conn. 230, and has never since been questioned. Partition of land belonging to two or more owners, whether as joint tenants, parceners, or tenants in common, is a mode provided by law for disuniting or dissolving the unity of possession in such owners; 2 Blackstone's Comm., s. p. 191; and the remedy cannot be invoked by one claiming to be owner but who has been disseised, against his alleged cotenant who is in sole possession of the land claiming to be sole owner thereof. This rule rests also on the settled and salutary principle that a person disseised of land he claims to own should not be permitted, while thus disseised, to exercise the rights belonging only to an owner in possession.
The plaintiffs refer to other statutes providing for a sale under other circumstances, upon the application of one who may not be in actual possession. These statutes are not enacted for the purpose of partition, and based upon grounds entirely different from those upon which § 1307 is based, and *Page 422 do not apply to the facts in this case. It is unnecessary to consider whether the changes in procedure following the enactment of the Practice Act may authorize the joinder of an action for partition by sale under § 1307 with an action of ejectment, or with an action for other equitable relief, as the action set forth in the plaintiff's complaint is simply and solely an action for partition by sale.
It is suggested that the defendant has coupled with its second defense a counterclaim asking affirmative relief through a decree confirming and establishing the title to the land in question in the defendant. If this prayer for relief can properly be considered as asking an adjudication of the persons entitled to the land, or any interest therein, under the will of Thomas Belden and the other facts set forth in the second defense, and if the defendant can lawfully plead such a counterclaim in answer to the action set forth in the complaint, it nevertheless appears that persons necessary to such an adjudication are not parties to this action, and for this reason the action should be dismissed.
The plaintiffs suggest that it is within the lawful discretion of this court to remand the cause to the Superior Court in order that the pleadings may be amended, other persons made parties to the action, and the various questions affecting the title to the land suggested by the defendant's second defense and counterclaim be adjudicated. Such a discretion ought not to be exercised in this case, inasmuch as we think it clear, from the facts appearing in the record, that such a course would not serve the ends of justice.
The Superior Court is advised to render judgment that the complaint be dismissed and the defendant recover its costs from the plaintiffs. Costs in this court will be taxed in favor of the defendant.
In this opinion the other judges concurred.