I am unable to vote for the reversal of this judgment.
If this action of partition is permitted to stand against all the defendants named it practically obliterates the distinction between partition and ejectment.
The property set forth in the complaint involves one hundred and twenty-one islands, more or less, in the St. Lawrence river.
As to the respondent defendants, six in number, they are not tenants in common with the plaintiff, nor with each other, nor with the many other defendants joined in this action.
These respondent defendants alleged in their answers that their grantors have been and they are continuing in the exclusive and undisputed actual possession of a certain island claimed by each particular defendant respectively under a claim of title thereto, openly, notoriously, continuously and adversely to the plaintiff and to the plaintiff's alleged cotenants for more than twenty years prior to the commencement of the action.
I may suppose a case (which doubtless presents the situation *Page 103 of one or more of these six defendants) of a defendant seized of one of these one hundred and twenty-one islands by a good title, in fee simple, and upon which he has placed a valuable house and other improvements for a summer residence. Is it possible that he can be compelled to answer in a partition suit, involving this entire group of islands, and defend his undoubted title to this one island in an action involving a multitude of issues, in which he has no interest whatever?
A litigant in the situation of this supposed defendant, standing upon an open and recorded title existing for many years, has the absolute right to defend it in an action of ejectment, unhampered by other issues and in the enjoyment of all those remedies which the law has wisely provided for the protection of title to land.
The cases cited, wherein it is claimed the issues in partition have been somewhat enlarged, have no application to this situation.
PARKER, Ch. J., HAIGHT, J. (and GRAY and CULLEN, JJ., in result), concur; BARTLETT, J., reads dissenting opinion; VANN, J., not voting.
Judgment reversed, etc.