Tuck, J.,
delivered the opinion of this court.
We need not express an opinion upon the propriety of the court’s refusal to remand the commission, at the instance of the appellant; because, although we may be satisfied that the court could have done no otherwise than dismiss the bill of complainant, in the condition of the cause, as presented for final decree, (Harris vs. Harris, 6 G. & J., 111,) yet, if it appears that the case cannot be determined on its merits, or that the purposes of justice will be advanced by permitting further proceedings, it must be remanded under the act of 1832, ch. 306, sec. 6. Chaney vs. Tipton, 11 G. & J., 253. Buchanan vs. Torrance, Ibid., 342.
The complainant, as we think, has established his claim, as tenant in common with the defendant, to an undivided moiety of the property in question, by a title paramount to the defence set up in her answer, conceding that defence to have been fully sustained by the evidence. The judgment under which he purchased William Lowe’s interest in the property was obtained before the deed from Reich and wife to his sister and himself, and fastened itself as a lien upon his interest, eo instanti his title accrued as tenant in common under that conveyance.
To relieve herself from this view of the case, as presented by the documentary evidence, the appellee insists that the property was wholly hers at that time, because she purchased and paid for it, and that die deed was executed to her and her brother, under the impression, on their part, that it would operate as a security, by way of mortgage, for a loan which he had made to her. It is not pretended that the deed is not in the form in which the grantees designed it to be, but they insist, that they then supposed it would have the effect now [508] imputed to it; that is to say, an effect that the law, as we think, does not allow, Now, whatever a court of equity might be authorised to do with this instrument, if the defendant were seeking to have it reformed as against William Lowe, we must deal with it as a case involving the rights of strangers to the transaction, and, in that aspect of the case, we are relieved from the necessity of passing upon the testimony offered to explain what the deed was intended to be. The defendant cannot, in a controversy with strangers, insist that the deed does not express what it was designed to express. She must abide by its construction and legal effect. Henderson vs. Mayhew, 2 Gill, 409. Alderson vs. Ames, 6 Md. Rep., 52. Anderson vs. Tydings, 8 Md. Rep., 427, 1 Peters, 1. The appellant, at a judicial sale, purchased the interest of William Lowe in this property, in reliance, as we must suppose, upon Reich’s deed to him and his sister. He was substituted, by law, to the rights of the judgment creditor, under whose execution he made the purchase, (Spindler vs. Atkinson, 3 Md. Rep., 423,) and cannot be affected by the disclaimer of title made by William Lowe, or by the deed from him to his sister, executed after the judgment became a lien on the property. 8 Md. Rep., 427. If the deed could be reformed, as between the defendant and William Lowe, or made to operate differently from the legal import of its terms, to the prejudice of this appellant, by the introduction of matters in pais, cotemporaneous with or subsequent to the excution of the instrument, our registry acts would afford little protection to purchasers.
The defendant denies the title of the complainant to any interest in the property. Generally, in such cases, the practice is to retain the bill until the right can be tried at law. Boone vs. Boone, 3 Md. Ch. Dec., 497. Wilkin vs. Wilkin, 1 Johns. Ch. Rep., 111; as in cases of dower. Wells vs. Beall, 2 G. & J., 468. But, as the point is to be determined, in this case, upon principles of equity — -the complainant having shown a legal title, and the defendant relying upon a defence cognizable only in a court of equity — if the court in which the partition is sought, does not entertain the question of title, the defendant would be deprived of the benefit of her defence alto[509] gether, for none such as that here relied on, could be made at law, even if the case were between the parties to the deed, and did not affect a stranger. Cartwright vs. Pultney, 2 Atk., 380.
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Tuck, J.,
delivered the opinion of this court.
We need not express an opinion upon the propriety of the court’s refusal to remand the commission, at the instance of the appellant; because, although we may be satisfied that the court could have done no otherwise than dismiss the bill of complainant, in the condition of the cause, as presented for final decree, (Harris vs. Harris, 6 G. & J., 111,) yet, if it appears that the case cannot be determined on its merits, or that the purposes of justice will be advanced by permitting further proceedings, it must be remanded under the act of 1832, ch. 306, sec. 6. Chaney vs. Tipton, 11 G. & J., 253. Buchanan vs. Torrance, Ibid., 342.
The complainant, as we think, has established his claim, as tenant in common with the defendant, to an undivided moiety of the property in question, by a title paramount to the defence set up in her answer, conceding that defence to have been fully sustained by the evidence. The judgment under which he purchased William Lowe’s interest in the property was obtained before the deed from Reich and wife to his sister and himself, and fastened itself as a lien upon his interest, eo instanti his title accrued as tenant in common under that conveyance.
To relieve herself from this view of the case, as presented by the documentary evidence, the appellee insists that the property was wholly hers at that time, because she purchased and paid for it, and that die deed was executed to her and her brother, under the impression, on their part, that it would operate as a security, by way of mortgage, for a loan which he had made to her. It is not pretended that the deed is not in the form in which the grantees designed it to be, but they insist, that they then supposed it would have the effect now [508] imputed to it; that is to say, an effect that the law, as we think, does not allow, Now, whatever a court of equity might be authorised to do with this instrument, if the defendant were seeking to have it reformed as against William Lowe, we must deal with it as a case involving the rights of strangers to the transaction, and, in that aspect of the case, we are relieved from the necessity of passing upon the testimony offered to explain what the deed was intended to be. The defendant cannot, in a controversy with strangers, insist that the deed does not express what it was designed to express. She must abide by its construction and legal effect. Henderson vs. Mayhew, 2 Gill, 409. Alderson vs. Ames, 6 Md. Rep., 52. Anderson vs. Tydings, 8 Md. Rep., 427, 1 Peters, 1. The appellant, at a judicial sale, purchased the interest of William Lowe in this property, in reliance, as we must suppose, upon Reich’s deed to him and his sister. He was substituted, by law, to the rights of the judgment creditor, under whose execution he made the purchase, (Spindler vs. Atkinson, 3 Md. Rep., 423,) and cannot be affected by the disclaimer of title made by William Lowe, or by the deed from him to his sister, executed after the judgment became a lien on the property. 8 Md. Rep., 427. If the deed could be reformed, as between the defendant and William Lowe, or made to operate differently from the legal import of its terms, to the prejudice of this appellant, by the introduction of matters in pais, cotemporaneous with or subsequent to the excution of the instrument, our registry acts would afford little protection to purchasers.
The defendant denies the title of the complainant to any interest in the property. Generally, in such cases, the practice is to retain the bill until the right can be tried at law. Boone vs. Boone, 3 Md. Ch. Dec., 497. Wilkin vs. Wilkin, 1 Johns. Ch. Rep., 111; as in cases of dower. Wells vs. Beall, 2 G. & J., 468. But, as the point is to be determined, in this case, upon principles of equity — -the complainant having shown a legal title, and the defendant relying upon a defence cognizable only in a court of equity — if the court in which the partition is sought, does not entertain the question of title, the defendant would be deprived of the benefit of her defence alto[509] gether, for none such as that here relied on, could be made at law, even if the case were between the parties to the deed, and did not affect a stranger. Cartwright vs. Pultney, 2 Atk., 380.
The remaining question is, whether the case can be remanded under the act of 1832, ch. 302, sec. 6. The argument on the part of the appellee is, that inasmuch as there is no evidence that a sale would be advantageous to the parties, and as the bill cannot be amended, so as to demand partition, or a sale, there is nothing by which the court can ascertain that the substantial merits of the case will not be determined by affirming the decree. If, as we have said, the complainant has established his claim to an undivided interest as tenant in common with the defendant, he is entitled to enjoyment of that interest, either by partition, (2 Ambl. 236, Parker vs. Gerard; 1 Story’s Fq., sec. 653,) or by a sale and division of the proceeds under our acts of Assembly. Corse vs. Polk, 1 Bland, 233. 2 White & Tudor, 329. He has presented his case in the latter aspect, alleging that the property cannot be divided, and that it would be for the advantage of the parties to have the same sold for a division, and this averment is not denied in the answer. The prayer is for a sale, and for general relief. The acts of 1785, ch. 72, sec. 12, and 1831, ch. 311, sec. 7, authorize the sale of property held in common, where the interest of all the parties requires that mode of partition. But these acts must be construed in connection with the law as it stood before their passage, and where that fact does not appear, partition may still be made, as matter of right to the party, and courts of equity will not refuse it, on account of the inconvenience or difficulties attending the partition. Agar vs. Fairfax, 2 White & Tudor, 351. These acts give a new remedy, in order to promote the interest of the parties, but. the object in view— separate enjoyment — is the same, whether the bill be filed for partition merely, or in the alternative; though to give the court jurisdiction under the acts of Assembly, it must be averred that a sale would be to the advantage of the parties. Tomlinson vs. McKaig, 5 Gill, 256. Suppose that in this case proof had been taken, and the court had been satisfied that [510] the interest of the parties did'not require a sale, would there have been any reason or justice in dismissing the bill, and subjecting the parties to the cost of another proceeding, for partition in the ordinary way, on the assumption that such relief would be inconsistent with the object of the bill? Why not, in such a case, if the court were satisfied of the complainant’s right to partition, allow him the benefit of his proceeding, by ordering a commission for that purpose? The error in the argument of the appellee’s counsel is this, that it treats this bill as seeking to obtain one of two inconsistent alternative objects, whereas the design of the proceeding is to obtain partition of this common property, in one of two modes allowed by the law, according to the situation of the property, and circumstances of the case. It is within the doctrine applicable to the uses of the general prayer. In Tomlinson vs. McKaig, 5 Gill, 256, a bill was filed under the act to direct descents, in which it was averred that the land would not admit of advantageous division, and a sale was prayed. There was also a prayer for general relief, and such other proceedings as might be necessary. The court held, that “ the complainants were entitled, under the frame of the bill and the prayers, to such action of the court as the case made in the bill would by law entitle them to; that it was not material to the case that the bill assumed that the land was incapable of division, and that there was a specific prayer for the appointment of a trustee to sell the lands; that the one might have been an inappropriate averment, and the other an inappropriate prayer, for such a case; but they would not vitiate averments conferring jurisdiction, or affect a prayer for general relief, which always justifies the ultimate action of the court thereupon, in pursuance of the case made by the bill.” In this case the appellant states his title; that the property will not admit of partition; that a sale would be advantageous to both parties; that the defendant refuses to divide the property, or to unite in making a sale. The averment that the lots did not admit of partition, may have been inappropriate, in view of the statement that the defendant had refused to divide the property; but, as in the case cited, such a statement ought not to vitiate the case made by the [511] bill, or affect the complainant’s right to be relieved by partition, under the general prayer.
We are aware that the provisions of the act to direct descents are not the same as those of the acts of 1785 and 1831; but the object is the same in both; that is, to obtain separate enjoyment of joint property. Now, under the descent laws, it is clear that the complainant need only show his title, and his right to have the property divided, and, if it cannot be divided with advantage to the parties, he will be entitled to have it sold for division. Chaney vs. Tipton, 11 G. & 253. When the doctrines of the common law relating to partition, and the acts of Assembly on that subject, are considered together, they do not so fin- differ from those regulating descents as to deny to a tenant in common substantially the same course of proceeding in obtaining partition as are enjoyed by parceners. It is sufficient, in order to have relief under the act of 1831, to show that the complainant is entitled to have partition of the property, that the defendant has refused to make partition, and that it would be for the interest and advantage of the parties to have the same sold for distribution of the proceeds. A bill thus framed, with a prayer for specific relief by a sale, and one for general relief, would authorize the court to decree a sale, or a partition, according to the evidence.
The object of this bill is to have separate enjoyment of the respective interests of the parties. We have seen that the complainant is entitled to relief in one of two modes, and as the substantial merits of the case cannot be determined on this record, it must be remanded, under the act of 1832, ch. 302, when the parties will have an opportunity of taking such other proceedings, by pleadings or proofs, as the purposes of justice may require.
Decree reversed and cause remanded,