#### Caleb G. Loring *et al.*Petitioners for Partition, *versus*Payton Gay *et al.*

To a petition for partition two respondents pleaded iñ bar that they were sole seised in fee of the land, to wit, in equal moieties, traversing the seisin of the petitioners as tenants in common ; to this plea the petitioners replied that the respondents were not seised of the land in fee in equal moieties. On demurrer the replication was held bad.

The petition represents that the petitioners are interested m and hold in common and undivided with Payton Gay or some other persons to them unknown, 49,502 parts of 75,000 parts of a piece of land in Dedham ; of which they pray partition, &c.

Payton Gay and George W. Gay, having appeared to this petition, plead, that they, the respondents, at the time of preferring the petition, were, and ever since have been, and now are sole seised and possessed of the land in question, “ in their demesne as of fee, to wit, in equal moieties ; without this, that the petitioners were and are seised thereof as tenants in common, as in their petition they have alleged ; ” concluding with a verification.

The petitioners reply, that at the time of preferring their petition the respondents “ were not or since have been or now are seised and possessed of the land, in their demesne as of fee in equal moieties, as in their said plea they have set forth; ” concluding to the country.

To this replication the respondents demur, stating the following causes of demurrer.

1. Because the replication tenders an issue on a negative pregnant.

2. Because the replication denies the right of the respondents to defend against the partition of the land and in the proportions mentioned in the petition, solely on the denial that the respondents are seised of the land in equal moieties. Whereas they are entitled by law to defend, if they are seised of any proportion of the land or of any portion of any part of it.

3. Because the replication tenders an immaterial issue, to wit, the seisin of the respondents of the whole of the land in equal moieties.

*684. Because the replication does not deny that the respond* ents are seised and possessed of the land or any part thereoi.

5. Because the replication does not deny that the respondents are seised and possessed of the land for life or of any less estate than a fee simple.

6. Because the replication does not maintain the petition, but traverses the inducement to the respondent’s traverse.

*Richardson*and *Metcalf,*in support of the demurrer,

cited *Lane*v. *Alexander,*I Brownl. 140 ; *Colborne*v. *Stockdale,*1 Str. 493 ; *Arundel v. Bowman,*8 Taunt. 190 ; *Atkins*v. *Bean,*14 Mass. R. 404 ; Steph. Pl. 259 ; Archb. Civ. Pl. 181 ; Com. Dig. *Pleader G,*12, 15, 16 ; *Goram*v. *Sweeting,*2 Saund. 206, and Wms’s notes ; *Osborne*v. *Rogers,*1 Saund. 267 ; *Rex v. Kildery,*1 Saund. 312 ; *Palmer*v. *Ekins, 2*Str. 818.

*Cushing, contra,*

cited *Brown*v. *Johnson, 2*Mod. 145 ; 2 Saund. 207, note 24 ; Com. Dig. *Pleader,*Q *; Mellor*v. *Spateman,*1 Saund. 346 ; 1 Chit. Pl. 586 ; *Leke's case,*Dyer, 365 ; *Tatem*v. *Perient,*Yelv. 195 ; *Cook*v. *Allen, 2*Mass. R. 462 ; 1 Saund. by Wms. 312, note 5 ; *Gil*v. *Parker,*2 Salk. 629 ; *White*v. *Bodinam,*6 Mod. 150 ; *Wotton*v. *Hele, 2*Saund. 177.

Parker C. J.

delivered the opinion of the Court. The substance of the several causes of demurrer to the replication is, that the petitioners have attempted to put in issue the proportions by which the respondents hold, without directly deny ing their seisin ; and that they have not in the replication denied any such interest of the respondents in the lands as entitles them to come in and defend against the petition.

We think the replication bad for both causes ; as it is quite immaterial whether the respondents hold in moieties or in any other proportion, for the purpose of being let in to defend against the petition ; for any one who is interested may make himself a party and put the petitioners to proof of their title, by denying their seisin. The case of Cook v. *Allen,*cited by both sides, settles this point. The respondents could not be shut out, if they owned or were interested in any part of the land prayed to be divided ; nor is it necessary that they should *69be owners in fee simple, as any less estate gives them an interest which entitles them to defend.

The petitioners, therefore, in order to have tried whether the respondents have a right to deny their title and object to partition, should have averred, that the respondents had no interest in the land ; which, however, as to Payton Gay, they could not do, as they in their petition have alleged that he is tenant in common with them.

The judgment is, that the replication is bad. If the petitioners move to replead, leave will be granted on payment of costs from the time of filing the replication.1

1

 See Revised Stat. *c.*103, § 15; *Hunt*v. *Hazelton,*5 N. Hamp. R. 216.