Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1913-12-17

Tor the assessment OF uelSnudutS COiii-
pensation for buildings and improve
ments, in accordance with the stipula-
ton of the report. The commissioners
then ascertained and determined the
value of the buildings and improvements
on the land demanded. and also the value
of the land, all as required by their war
rant; and made their report thereof to
the court, which report was accepted by
the court at its September term, 1910.
Nothing further was done by the plain
tiff respecting that real action, and on
September IL, 1911, he began this petition
for partition, claiming to be seized in
fee simple of said twenty-one forteths of
said land, and to be entitled to have the
same set out to him to hold in severalty
Held:
l. When the parties agree that the
value of the, buildings and improvements
on the land demanded, and the value Of
the land, shall be ascertained by persons
named ON the record for that purpose
their estimate sis equal in it's effect to a
verdict" Sec. "a, Chap. LOG. R. s
g After such verdict, the demandant
may elect (Sec. 2e, Chap. 106 r. 81 to
abandon the premises to the tenant at
the value estimated and have judgment
against the tenant for the sum so esti-
mated and costs. But if he does not so
elect, his rights under the real action,
and in the premises, are limited and
controlled by the provisions of Sec. 81, of
said Chapter 1Oe, viz; When the de-
mandant does not elect so to abandon
the premises, no writ of possession shall
issue on his judgment, nor new ac-
ton be sustained for the land unless
within one year from the rendition
thereof. he pays into the clerks
office. or to such person as the court ap-
points. for the use of the tenant, the
SIM, assessed for the buildings and
improvements, with interest thereon"
3 After the commissioners reported
and their report was accepted by the
the real action. which stated, on the one
hand, the increased value OF the prem
ises by reason of the tenants build
ings and improvements thereon, and on
the other, the value of the land at the
time of the trial without the improve
ments. The demandant's title in his
twenty-one fortieths of the land was
thereby qualified. He then had the option,
either to take Judgment against the ten
ants for the value of the iand at the time
of the trial independent of the tenants
improvements, or to have the land with
the improvements. upon paying within
the time limited in the statute, the sum
stated in the report as the value of the
improvements.
A. The defendant can not be permitted
m fiSra rd he baI IN. l,a
real action, and, ignoring their effect up
on his title, bring another action against
the same defendants to again try out
his claim to that property. To permit
that would be to violate the express pro-
hibition of the statute. that mo writ of
possession shall issue on his Judgment
nor new action be sustained for the
land" unless he pays the assessed value
Of the improvements within the one year
specified in the statute.
5. These partition proceedings constf-
tute new action within the meaning
of the statute, brought by the petitioner
for the same premises involved in the
real action. Although this process is
designed to establish the petitioners
legal right of possession In severalty to
a part of the property, nevertheless all
questions concerning the title of the
parties and the nature and extent of
their interests, are to be determined be-
fore the interlocutory judgment for par
tition can be made.
1t is therefore the opinion of the court
that the petition for partition was right
ly dismissed as not being sustainable.
Exceptions overruled.
Reed December 18th, 1918.