Green, President,
delivered the opinion of the Court:
The first-question for our consideration is: Are the parties claiming under Mary Jarrell entitled to any interest in any part of this tract of land of nine thousand acres? If not, the court below should have dismissed the bill. It is admitted that this land was patented to Jacob Baker, May 19, 1786, and conveyed by him October 21, 1788, to Jonathan Furbee; and on his death it descended to his two children, Nathaniel Furbee and Mary Furbee, afterwards Mary Jarrell, as his heirs, and that they continued joint-tenants of this land for upwards of ten years after their father’s death in 1796. It is insisted by appellant’s counsel, that under the facts and circumstances proven in this case the court ought to presume, that all the interest of Mary Jarrell in this land was conveyed by her to either her brother, Nathaniel Furbee, or his vendee, Benjamin Dill, or at least that the court should presume that Benjamin Dill actually ousted his tenant in common Mary Jarrell, at least as long ago as 1817 ; and that [20]*20^ s^e ever ha<^ a right after his purchase of this land in 1808, it is barred by this actual ouster of her.
There was a very feeble effort made by the defendants to strengthen this supposed presumption by proof, that an actual conveyance was made by her to her brother about 1807 of her interest in this tract of land. But the evidence signally fails to render it in any degree probable that she ever made such a conveyance. It consists only of the evidence of a single witness, that the brother told him he had bought her interest, not that she had conveyed it to him; and there is no proof that she ever admitted she had made such a sale. On the contrary, if it can be believed, there is a good deal of testimony that not only he, but his vendee, Dill, and several of his agents have frequently admitted that no such purchase was ever made by her brother or by Dill, and that she continued to have an interest in said tract of land.
I have stated this evidence briefly. It is assailed by the counsel of the appellants as untrustworthy. I need not comment on it, as I consider that the deed from Nathaniel Furbee to Benjamin Dill shows on its face that no such conveyance could have been made. This deed, dated May 7, 1808, states that this land was patented to Jacob Baker May 19, 1786, and conveyed by Baker and wife, on October 21,- 1788, to Jonathan Fur-bee; and it sets out in its preamble the boundaries of the land. After thus particularly tracing the title of the land from the commonwealth, and after stating that Jonathan Furbee died seized of this land, if his sister had really shortly before that time conveyed all her interest in this land to her brother, the grantor in the deed, is it credible that a" deed drawn with this particularity would have failed to state that this tract of land on his father’s death descended to him and his sister as his sole heirs, and that she by a deed, giving its date, as all the others had been given, conveyed her undivided moiety in this land to him?
But while the deed had been thus far exact and de[21]*21tailed in tracing the grantor’s title up to his father’s death, it is most singularly, loose in showing the grantor’s title as derived from his father. Having traced title to his father this deed proceeds: “Whereas, after the execution of the before mentioned deed to him, Jonathan Furbee died leaving the aforesaid Nathaniel Fur-bee, his son, and the said Nathaniel Furbee and Elizabeth, his wife, having sold all their right and title in and to the aforementioned lands and premises to the aforesaid Benjamin Hill, and being about to convey and make over the same, therefore this indenture witnesseth.” The grantors in this deed then proceed to grant to Benjamin Hill and his heirs “all their estate, right, title, interest, property, claim and demand of, in, to or out of the premises aforesaid, together with its appurtenances and all the estate, right, title, interest, property, claim and demand whatsoever of the said Nathaniel Furbee and Elizabeth, his wife, in law or equity, or otherwise whatsoever, to have and to hold the said tract and parcel of land, and premises, hereditaments and other appurtenances hereby granted or mentioned so to be to the said Benjamin Hill his heirs and assigns, to the only proper use of the said Benjamin Hill his heirs and assigns forever.” And then follows a special warranty of “ said tract or parcel of land, hereditaments and appurtenances hereby granted or mentioned so to be.”
It will be observed that this deed, while it recites that the grantor was the son of Jonathan Furbee, deceased, does not say, as it could not with truth have said, that he was the only child, nor does it say he was his sole heir, as it could not have so said with truth. But though all the parties to this deed knew that the grantor was not the sole heir of his father, and though he is particular in the granting part of this deed to convey only his interest in this land, which the parties well knew was one undivided moiety, yet the deed is particular not to so describe his interest, but on the contrary it is so worded that a stranger to the facts might draw the inference that the [22]*22grantor was the sole heir of his father, and that by this 'deed a title to the whole tract of land was conveyed to Benjamin Dill.
The object of the parties in so wording this deed seems obvious enough. The lands lay in a distant state, where it Avould not be known that Jonathan Furbee left two children. The purchaser, Benjamin Dill, bought their interest in these wild lands with a view of dividing them up and selling them. He knew that parties, who bought for homes for themselves, would be unwilling to purchase an undivided interest in these lands; and the deed, while it really conveyed only an undivided moiety, of the lands, was so written that strangers would suppose it conveyed the whole of the lands. Benjamin Dill accordingly personally and by his agents proceeded to sell parcels of this land in tracts of five hundred acres to sundry persons, both he and they leading such persons to believe that he was the sole owner of this tract of land; and deeds were accordingly made to them of the entire parcels of land bought. It is charitable to believe that he did not originally intend to thus sell and convey more than one moiety in' value of this land, and to leave the other moiety for his tenant in common unsold, and accordingly he confined his sales for a long time within these limits; but after more than twenty years had elapsed, he seems to have concluded to appropriate the whole land to his own use, and in 1829 he made sales which far exceed in value one moiety of the land. About the same time he wrote his will devising the whole of these lands unsold to his children and grandchildren.
His c.o-tenant lived in Delaware, was a woman, and for the greater part of the time when these things were occurring was a married woman. The lands lay in a distant state and were wild lands of comparatively small value. Under these circumstances the having of the lands taxed to him alone, the payment of the taxes by him, the making of the deeds in the form he made them, not admitting^ on their face her title as. co-tenant, the recording [23]*23of these deeds by the purchasers, the claim made by him in this distant State that he was the sole owner of the lands, are all, it seems to me, entitled to no weight as circumstances from which to presume she had made a conveyance to him of all her interest in these lands, or that he had made an actual ouster of her as his tenant in common.
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Green, President,
delivered the opinion of the Court:
The first-question for our consideration is: Are the parties claiming under Mary Jarrell entitled to any interest in any part of this tract of land of nine thousand acres? If not, the court below should have dismissed the bill. It is admitted that this land was patented to Jacob Baker, May 19, 1786, and conveyed by him October 21, 1788, to Jonathan Furbee; and on his death it descended to his two children, Nathaniel Furbee and Mary Furbee, afterwards Mary Jarrell, as his heirs, and that they continued joint-tenants of this land for upwards of ten years after their father’s death in 1796. It is insisted by appellant’s counsel, that under the facts and circumstances proven in this case the court ought to presume, that all the interest of Mary Jarrell in this land was conveyed by her to either her brother, Nathaniel Furbee, or his vendee, Benjamin Dill, or at least that the court should presume that Benjamin Dill actually ousted his tenant in common Mary Jarrell, at least as long ago as 1817 ; and that [20]*20^ s^e ever ha<^ a right after his purchase of this land in 1808, it is barred by this actual ouster of her.
There was a very feeble effort made by the defendants to strengthen this supposed presumption by proof, that an actual conveyance was made by her to her brother about 1807 of her interest in this tract of land. But the evidence signally fails to render it in any degree probable that she ever made such a conveyance. It consists only of the evidence of a single witness, that the brother told him he had bought her interest, not that she had conveyed it to him; and there is no proof that she ever admitted she had made such a sale. On the contrary, if it can be believed, there is a good deal of testimony that not only he, but his vendee, Dill, and several of his agents have frequently admitted that no such purchase was ever made by her brother or by Dill, and that she continued to have an interest in said tract of land.
I have stated this evidence briefly. It is assailed by the counsel of the appellants as untrustworthy. I need not comment on it, as I consider that the deed from Nathaniel Furbee to Benjamin Dill shows on its face that no such conveyance could have been made. This deed, dated May 7, 1808, states that this land was patented to Jacob Baker May 19, 1786, and conveyed by Baker and wife, on October 21,- 1788, to Jonathan Fur-bee; and it sets out in its preamble the boundaries of the land. After thus particularly tracing the title of the land from the commonwealth, and after stating that Jonathan Furbee died seized of this land, if his sister had really shortly before that time conveyed all her interest in this land to her brother, the grantor in the deed, is it credible that a" deed drawn with this particularity would have failed to state that this tract of land on his father’s death descended to him and his sister as his sole heirs, and that she by a deed, giving its date, as all the others had been given, conveyed her undivided moiety in this land to him?
But while the deed had been thus far exact and de[21]*21tailed in tracing the grantor’s title up to his father’s death, it is most singularly, loose in showing the grantor’s title as derived from his father. Having traced title to his father this deed proceeds: “Whereas, after the execution of the before mentioned deed to him, Jonathan Furbee died leaving the aforesaid Nathaniel Fur-bee, his son, and the said Nathaniel Furbee and Elizabeth, his wife, having sold all their right and title in and to the aforementioned lands and premises to the aforesaid Benjamin Hill, and being about to convey and make over the same, therefore this indenture witnesseth.” The grantors in this deed then proceed to grant to Benjamin Hill and his heirs “all their estate, right, title, interest, property, claim and demand of, in, to or out of the premises aforesaid, together with its appurtenances and all the estate, right, title, interest, property, claim and demand whatsoever of the said Nathaniel Furbee and Elizabeth, his wife, in law or equity, or otherwise whatsoever, to have and to hold the said tract and parcel of land, and premises, hereditaments and other appurtenances hereby granted or mentioned so to be to the said Benjamin Hill his heirs and assigns, to the only proper use of the said Benjamin Hill his heirs and assigns forever.” And then follows a special warranty of “ said tract or parcel of land, hereditaments and appurtenances hereby granted or mentioned so to be.”
It will be observed that this deed, while it recites that the grantor was the son of Jonathan Furbee, deceased, does not say, as it could not with truth have said, that he was the only child, nor does it say he was his sole heir, as it could not have so said with truth. But though all the parties to this deed knew that the grantor was not the sole heir of his father, and though he is particular in the granting part of this deed to convey only his interest in this land, which the parties well knew was one undivided moiety, yet the deed is particular not to so describe his interest, but on the contrary it is so worded that a stranger to the facts might draw the inference that the [22]*22grantor was the sole heir of his father, and that by this 'deed a title to the whole tract of land was conveyed to Benjamin Dill.
The object of the parties in so wording this deed seems obvious enough. The lands lay in a distant state, where it Avould not be known that Jonathan Furbee left two children. The purchaser, Benjamin Dill, bought their interest in these wild lands with a view of dividing them up and selling them. He knew that parties, who bought for homes for themselves, would be unwilling to purchase an undivided interest in these lands; and the deed, while it really conveyed only an undivided moiety, of the lands, was so written that strangers would suppose it conveyed the whole of the lands. Benjamin Dill accordingly personally and by his agents proceeded to sell parcels of this land in tracts of five hundred acres to sundry persons, both he and they leading such persons to believe that he was the sole owner of this tract of land; and deeds were accordingly made to them of the entire parcels of land bought. It is charitable to believe that he did not originally intend to thus sell and convey more than one moiety in' value of this land, and to leave the other moiety for his tenant in common unsold, and accordingly he confined his sales for a long time within these limits; but after more than twenty years had elapsed, he seems to have concluded to appropriate the whole land to his own use, and in 1829 he made sales which far exceed in value one moiety of the land. About the same time he wrote his will devising the whole of these lands unsold to his children and grandchildren.
His c.o-tenant lived in Delaware, was a woman, and for the greater part of the time when these things were occurring was a married woman. The lands lay in a distant state and were wild lands of comparatively small value. Under these circumstances the having of the lands taxed to him alone, the payment of the taxes by him, the making of the deeds in the form he made them, not admitting^ on their face her title as. co-tenant, the recording [23]*23of these deeds by the purchasers, the claim made by him in this distant State that he was the sole owner of the lands, are all, it seems to me, entitled to no weight as circumstances from which to presume she had made a conveyance to him of all her interest in these lands, or that he had made an actual ouster of her as his tenant in common. There is not the slightest probability that she ever had any knowledge, that in the far distant State of Virginia he and his agents had set up a pretence, that he was the sole owner of this tract of land, or that he was then acting in any manner in bad faith to her as his co-tenant. It is very probable that persons residing near his home in Delaware supposed he had purchased these wild lands of both of the heirs of Jonathan Furbee, and that he was the sole owner of the tract. But surely a notoi’iety of ownership of lands hundreds of miles away and existing among those, who had no means of knowledge, is a circumstance, from which it would be highly unreasonable to draw an inference, that his co-tenant knew he claimed the whole of this tract of land. Others may have thought so, simply because they knew and cared nothing about it, had supposed that Dill had done what most persons in his situation would have done, bought the land from both the heirs. She however knew better, knew he had not bought her interest in these lands; and I see no circumstance in this case which indicates that she had any suspicion, that he so said, or set up any other pretence of ownership of the whole land. There is not a particle of proof that she was ever informed that he set up such a pretence; and her mere failure to call him to an account of what he had done in Virginia with reference to these lands is, it seems to me, of very little weight, when we remember that they were wild lands of very little value. The estimate which was put upon them in Delaware is shown by the fact, that her brother sold his moiety of these nine thousand acres of land for $500.00 or at about eleven cents an acre. She was a married woman; her [24]*24co-tenant an active business man. She might well suppose that she could safely leave the protection and preservation of their joint interest in these lands to his care; and, if she thought about the taxes on these lands at all, she could very properly wait till her co-tenant called upon her to aid in the payment of them.
It would shock the sense of right, which must be felt by all, if such a possession, as was held by Benjamin Dill oí this tract of land, and such acts of ownership, as he exercised over it in a far distant State, should be held to raise a presumption, either that he had actually ousted his co-tenant from this tract of land so as to bar her claim, or that she had made a conveyance to him of all her interest in this tract of land. When the law raises such presumptions, it is under circumstances far different from what are disclosed in this case.
Justice Nelson, in delivering the opinion of the Supreme Court in Zellers, lessee, v. Eckert et al., 4 How. 296, in speaking of the character of the proof necessary to establish an adversary possession, when there exists a pri-vity between the parties, as in the case of tenants in common, says: “ The distinction between this class of cases, and those in which no privity existed between the parties when the possession commenced, is in the degree of proof required to establish the adverse character of the possession. As that was originally taken and held in subserviency to the title of the real owner, a clear, positive and continued disclaimer and disavowal of the title, an assertion of an adverse right and to be brought home to the party, are indispensable, before any foundation could be laid for the operation of the statute. Otherwise the grossest injustice might be practiced. For without such notice he might well rely on the fiduciary relation, under which the possession was originally taken and held. The statute does not begin to operate until the possession, before consistent with the title of the real owner, becomes tortious and wrongful by disloyal acts of the tenant, which must be open, continued and [25]*25notorious, so as to preclude all doubt as to the character of the bolding, or want of knowledge on the part of the owner.”
The principle here laid down applies to every case where a party comes into possession of land while occupying a fiduciary relation to another, and includes, as has been often decided, the case of a tenant in common in possession of land. He occupies such a fiduciary relation to his co-tenant, that it is well settled that the law will never presume, that he has actually ousted his co-tenant, or that there has been a conveyance to him by such co-tenant, unless he disclaims the title which he holds with his co-tenant, asserts an adverse title, and brings home to his co-tenant distinct knowledge of such adverse title and disclaimer. Such knowdedge must be clearly shown, and must in effect be the equivalent to a notice to him of such claim of adverse title. Many authorities might be cited to sustain this position ; but it is deemed unnecessary, as they have been laid down by this Court in a recent case and applied to the case of tenants in common. See Hudson et al. v. Putney et al., 14 W. Va. 561.
It is obvious from these principles that the possession of Benjamin Dill cannot be regarded as adverse to his co-tenant, Mary Jairell; and that no presumption of actual ouster or of a conveyance from her can arise in this casr>. She certainly never had the equivalent of actual notice, that her co-tenant disclaimed their common title and set up an adversary claim; and without this no length of time would convert his possession into a bar of her rights.
The plaintiff claiming under her had an interest then in this tract of land, and the court did not err in not dismissing his bill.
The next enquiry is: What are the rights in this land of the assignee of Mary Jarrell? The position of the appellant’s counsel is, that when Dill, her co-tenant, sold and conveyed a defined portion of this land with[26]*26out her consent or knowledge, the legal effect of such conveyance was to confer on the grantee in the deed the legal title to one undivided moiety of the lot conveyed, and that the legal title to the other moiety of the lot so conveyed became at once vested in DilPs co-tenant, Mrs. Jarrell; and if Dill had conveyed to a purchaser not the whole, but an undivided part of such defined portion of the land, the legal effect of such a conveyance would be precisely the same; that Mrs. Jarrell being thus a co-tenant with each purchaser in the lot conveyed to him by her co-tenant, Dill, either the purchaser or she had a right to demand a partition of such lot, and if through her laches, or by reason of the decree of the circuit court of Lewis county in 1845, in a suit in which neither Dill nor his devisees were parties, she has lost her right to a portion of these lots conveyed, she has no right by substitution to demand that what she has by her own fault lost shall be made up to her in the portion of the lots not sold. For to this portion of the land Dill, and after his death his heirs, had a legal title to an undivided moiety, and after his death his devisees are 'purchasers for a valuable consideration, and having the legal title to one undivided moiety of this unsold land, their legal title to this undivided moiety ought not to be made to yield to a shadowy equity in her, this right of substitution, when she permitted this equity to become stale.
These views, it seems to me, are all fundamentally wrong. Dill had a legal and equitable right as a tenant in common with Mrs. Jarrell to an undivided moiety of the entire tract of nine thousand acres. When he divided it into eighteen lots of say five hundred acres each, he obviously did not by this division of the land, made without the consent or knowledge of his co-tenant, become invested with the title to an undivided moiety in each of these lots separately, so that he could confer on a third person a title to an undivided moiety of any one lot to the prejudice of his co-tenant, and much less could he to the prejudice of his co-tenant confer a title to the [27]*27whole oí any one oí these lots. There are authorities which hold a deed by one co-tenant conveying by metes and bounds a part of the co-tenancy is void, and others that hold it void so far as it undertakes to impair any of the rights of the other co-tenant. See Cogswell v. Reed, 12 Me. 200; Duncan v. Sylvester, 24 Me. 485; Jeffers v. Radcliff 10 N. H. 246; Great Falls Co. v. Worster. 15 N. H. 449; Smith v. Benson, 9 Vt. 140; Phillips v. Tudor, 10 Gray 82; Adam v. Briggs Iron Co., 7 Cush. 369; Gibbs v. Swift, 12 Cush. 398; Blossom v. Brightman, 21 Pick. 284 ; Peabody v. Minor, 24 Pick. 333; Porter v. Hill, 9 Mass. 35; Bartlet v. Harlow, 12 Mass. 348; Hinman v. Leavennerworth, 2 Conn. 244a.; Mitchell v. Warner, 4 Conn. 509; Griswold v. Johnson, 5 Conn. 365; Gates v. Treat, 17 Conn. 392; Marshall v. Trumbull, 28 Conn. 185; The Boston Franklinite Co. v. Condit, 19 N. J. Eq. 401; Holcomb v. Coryell, 3 Stock. 548; Dorn v. Dunham, 24 Tex. 377; Good v. Coombs, 28 Tex. 51; Carroll v. Norwood, 1 Har. & J. 100 ; Richardson v. Miller, 48 Miss. 334; Primm v. Walker, 38 Mo. 98.
Some of these cases treating such a deed by one co-tenant as absolutely void seem to me to have gone too far. Judge Allen, in delivering the opinion of the Court of Appeals of Virginia, in Robinett v. Preston, 2 Rob. 278, speaking of such a deed says: “Though it might be ineffectual to pass the particular tract as against the co-tenant, yet as against the grantor and strangers it would be effectual to pass the interest of the grantor in the tract. Possession under it would sustain a release from the co-tenant; and if the part conveyed was assigned to the alienee on partition, the title would be absolute at law. The deed being good against the grantor, the entry under it of the tenant would be lawful; and though it might be inoperative, so far as the rights of the co-tenant would be thereby prejudiced, yet, as it would invest the grantee with the estate of the grantor so far as he could lawfully convey, the grantee would be tenant in common with the co-tenant of his grantor to the ex-[28]*28^Ie interest conveyed. His possession and seiz-in would be the possession and seizin of both, because such possession and seizin could not be adverse to the right of his companion, but in support of their common title.”
These views of Judge Allen seem in the main to be supported by the cases of Gates v. Salmon, 35 Cal. 588 ; Sutton v. San Francisco, 36 Cal. 115; Lessee of White v. Sayre, 2 Ohio, (p. 112 of first Ed.) on p. 302 of said edition; Ebenezer Prentiss’s Case, 7 Ohio 473; Treon v. Emerick, 6 Ohio 391; Dennison v. Foster, 9 Ohio 126; Resing v. Stannard, 17 Mass. 285; Barnhart v. Campbell, 50 Mo. 598; Dall v. Brown, 5 Cush. 291; Varnum v. Abbott, 12 Mass. 480. But it seems to me that the language used by Judge Allen, “that the grantee would be tenant in common with the co-tenant of his grantor, to the extent of the interest conveyed,” must be given a qualified meaning, as it would seem he intended by what immediately follows and from the character of the case then before the court. To suppose he meant that the grantee became a co-tenant in the particular tract laid off without his consent express or implied with the co-tenant of the grantor to all intents and purposes, so as to give such grantee an absolute right to sue for a partition of the parcel conveyed to him, would be a direct contradiction of what he had just said, that “ the deed was ineffectual to pass the title as against the co-tenant, and would be inoperative,, so far as the rights of the co-tenant were prejudiced.” In truth such a construction of Judge Allen’s language would put him in opposition to all the authorities above quoted.
It is certainly law, that a conveyance by one co-tenant of a part of a tract specified by metes and hounds cannot give the grantee any greater right thereto than held by his grantor; and as he could not exclusively occupy the parcel of land he conveyed, so his grantee can have no such exclusive right; and as the grantor of such parcel could not demand that the whole or any part of [29]*29such parcel should be set off to him, so his grantee could acquire no such right. Yet the better authorities hold, that he has rights, which will be considered by the court in making the partition of the whole tract, and which will be respected, so far, and so far only, as they can be without prejudice to the original co-tenant of the entire tract. In making such partition, if the parcel so sold and conveyed by one tenant in common can be assigned to the purchaser as a part or the whole of the share of his grantor without prejudice to the co-tenant of the grantor in the entire tract, the court will so assign it, thereby making the purchaser’s title perfect. See McKee v. Barley, 11 Grat. 346; Campaw v. Godfrey, 18 Mich. 38; Holcomb v. Coryell, 3 Stock. 548; Dorn v. Dunham, 24 Tex. 376; Stark v. Barrett, 15 Cal. 368; H. Worthington v. J. E. Staunton et al., infra, where many of the authorities above cited are reviewed.
It is clear therefore that the sale of these lots by Dill without the knowledge or consent of his co-tenant did not put her in such a relation to the purchasers, that she could be compelled to receive as a portion of her moiety of the nine thousand acre tract the moiety of each of these several tracts; and therefore she would not be under any obligation to bring suits for partition against each of these purchasers severally. Either Dill or she had a right to a partition of the entire tract; and all these purchasers from Dill ought in such suit for a partition to have been brought before the court; and if the court could with justice to Mrs. Jarrell have assigned to the various purchasers from Dill the several parcels of land they had purchased as a part of his share, it should have been done in justice to Dill and the purchasers from him. If a purchaser of .a particular lot of Dill had at the time of his purchase been made aware, that he was but a co-tenant in the entire tract and had no legal title to the whole or an individual moiety of the particular lot he was selling, it is obvious that upon the principles we have laid down such a purchaser could not convert [30]*30possession into an adversary possession as against her except by a disclaimer, the assertion of some adverse and notice to her; for his possession would have commenced in subordination to her title, which he knew was continuing and subsisting. See Hudson et al. v. Putney et al., 14 W. Va. 561; Clarke v. McClure, 10 Gratt. 310. If however Dill made an absolute conveyance of a lot to a purchaser, and the purchaser had good reason to believe, and did believe, that Dill was the owner of the entire lot of land sold, then his possession would be adverse to Mrs. Jarrell. We need not in this particular case consider to which of these cases the particular sales made by Dill in this case belongs; for the circuit court of Lewis county in the decree rendered in 1845 decided in favor of these purchasers against Mrs. Jarrell’s assignee; and the plaintiff in this suit acquiesces in this decision..
According to these views it was the duty of the de-visees of Dill in this suit to ask of the circuit court to assign them the lots of land their ancestor. Dill, had sold, in order that they might make a good title for the whole of each of these lots to the purchasers thereof. This the court did and they have no right to complain of this action.
The equitable doctrine, that the courts will not enforce stale demands, has of course no application in this case, if the views above taken are correct. The plain - tiff did not seek any account of rents and profits, but simply a partition of the land. It is of course immaterial how long a tenancy in common has lasted ; either party has a right at any time to ask a partition by the court.
It is claimed by the appellant’s counsel, that as Nathaniel Furbee warranted the whole tract specially t0 Benjamin Dill in the deed to him, and as the record shows that Mrs. Mary Jarrell was the sole heir of Na-thanial Furbee, she was barred to the extent of the lands which descended to her from Nathaniel Furbee [31]*31from recovering the land warranted by him, and therefore from having substituted for them the unsold lands. There is nothing in this position, for, as we have seen, Nathaniel Furbee did not sell or convey to Benjamin Dill the whole of this tract of land, but only a moiety thereof; and his special warranty can not be interpreted as extending beyond what he sold and conveyed.
Appellant’s counsel also insist, that partition, should not have been made of this land, till the court had ascertained the expenses which Dill as co-tenant had incurred in the payment of taxes, in surveying and compensating agents, and until Dill’s devisees had been compensated for the same and for the trouble he had been at in superintending this land. It is a sufficient answer to this to say, that they did not ask the circuit court for any such compensation, probably because they knew he had been more than compensated by having by his sales appropriated to his own use far more than one-half in value of this tract of land. The commissioners estimated that the land he had sold exceeded in value all the unsold land by $6,374.30, while the receipts for taxes paid by Dill, as shown by the record do not exceed $125.00; and for surveying they amounted to but $26.00.
The decree of the circuit court of September 21, 1866, must therefore be affirmed; and the appellee must recover of the appellant his costs expended in this court and $30.00 damages.
Judges Johnson and Moore Concurred.
Decree Affirmed.