Supreme Court of New Hampshire Grafton.
Decided June, 1884.
One tenant in common of land holding his share under a deed from his co-tenant is not barred from having partition by a condition in the deed that the grantee shall not dispose of the premises, or permit them to be occupied by any person but himself, during the life of the grantor.
PETITION for partition. The plaintiff claims title to one undivided half of the premises, by virtue of a deed from the defendant to her, which contains a condition as follows:
“The condition of this deed is that the said grantee, during the lifetime of the said grantor, shall not sell, lease or otherwise alienate or dispose of the above described premises or permit the same to be occupied or held by any other person or party than herself and said grantor without his license or permission which must be given by deed to an authorization within the meaning of this condition.”
The defendant claims that under this condition the plaintiff is not entitled to partition.
Bingham, Aldrich Remick, for the plaintiff.
Bingham, Mitchells Batchellor, for the defendant.
Page 201
SMITH, J.
The condition will cease at the defendant’s death. Its object is to secure some protection during his lifetime. He reserved the right of excluding everybody but the plaintiff from occupation. The deed shows no purpose of prohibiting anything except the admission of any other person than the plaintiff to the use, possession, or control of the land. After partition, the condition will be as effective as before. Sawyer v. Sawyer, 61 N.H. 50. It will still protect the defendant as much as it does now against the presence of any other occupant than the plaintiff. He will still have, as he now has, the right of alienating his own, and of introducing occupants and neighbors disagreeable to her; while her disability to introduce occupants and neighbors disagreeable to him will continue. The condition is wholly negative. It does not require her to occupy the land, or any part of it. She can withdraw from actual possession without any loss of title or right of possession. His right of excluding others from the occupation and control of the land is the only right he reserved. The extent of that right, and the operation of the condition in that direction, are questions not raised by this petition. His reserved right of excluding others from use, possession, and control, whatever that right may be, will not be affected by partition.
Case discharged.
STANLEY, J., did not sit: the others concurred.