Gilchrist, C. J.
The petition for partition states, that the appellant is the owner of one sixth part of the premises in question. The appellant alleges that he owns more than one sixth part.
It is provided by ch. 206, § 21, Rev. Stat., that if there is no dispute about the title, the petition for pártition may be directed to and filed with the judge of probate, who shall appoint a time •and place of hearing thereon, and sec. 6, ch. 152, Rev. Stat. _ enacts, that the judge of probate may exercise jurisdiction of all petitions for partition of real estate in" cases where no dispute shall exist in relation to the title thereof.
The only question made by the appellant is, whether he seasonably set up his claim to more than one sixth part of the premises. If he did not, another question will arise, whether his neglect will estop him from any further assertion of his rights.
In the affidavit of Mr. Hatch he states, that at the February term of the Probate Court, before the appointment of a commit-lee, he stated in court that the title to the premises was in dispute, and that the appellant claimed more than one sixth part. He says, that at the request of the register he drew up his objection in writing, but accidentally omitted to file it until the 4th day of April. The register remembers that Mr. Hatch was in court in the month of February, and thinks he had some conversation with the judge and with himself, but he cannot remember on what subject. He does not remember that Mr. Hatch made any motion in form, nor that he transacted any other business than that relating to this petition.
There is nothing to contradict Mr. Hatch, and it therefore must be considered as proved that the appellant made the exception as he has alleged, and we think that nothing more than this was necessary to show that there was a dispute about the title, and to oust the Court of Probate of its jurisdiction. It was probably never intended that the parties should investigate the merits of the dispute, and lay evidence before the court, for the mere fact whether there is a dispute can be determined without ascertaining which party has the better title. The.case of the Judge of Probate v. Briggs, 3 N. H.Rep. 309, is not adverse to this viewof the question, for that decision settles only that the decisions of the Probate Court must be proved by the record of its proceedings, and the question here is merely, whether an exception was taken that the title was in dispute.
It is contended by the copnsel for the appellees that the order of this Court upon the former petition, that the case be remitted to the Probate Court for further proceedings, necessarily settles the present question. The former report was set aside upon grounds not necessary to be adverted to here. It is enough to say that this question was not considered. Upon a motion for the appointment of a new committee in the Probate Court, this question would as well arise as upon the original motion. The objection to the jurisdiction would still exists The order remitting the case, meant only that such proper proceedings should be had as the law would authorize, and is in no sense a decision of the question whether there was any dispute about the title.
As we think it appears that the title was in dispute, the Court of Probate had no jurisdiction to cause partition to be made.
Decree reversed.