By the Court, Rhodes, J.:
Three separate appeals from the judgment were taken by different parties to this action, but the records are alike, [371]*371except that in one there is a statement on appeal. The three appeals will be considered together.
On the former appeal the principal question was whether the holders of the special locations—those who had acquired title to specific parcels of the rancho from one or more of the tenants in common of the rancho—were necessary parties to the action; and in passing upon that question, it became necessary to ascertain what title to a special location would pass by virtue of a deed executed by one or more of the tenants in common of the rancho. It was then held—and that is the law of this case—that the holders of the special locations were necessary parties to the action for partition ; and that each of them, by virtue of the deed of the tenant in common under whom he claimed, acquired the title of such tenant in common in the special location described in the deed, and that he thereby became a tenant in common of each special location—that he stood precisely in the place of his grantor, in respect to the special location, and as to it became a tenant in common with those tenants in common of the rancho, who had not united in his deed.
The finding of the facts is not attacked by any of the present appellants, except John McBrown and Samuel Brown, who, in their statement on appeal, specify as errors the refusal of the Court to find certain facts in respect to their title. The findings, as we understand them, cover the whole title to the rancho, and if the Court, in finding that a certain party holds a particular title to the rancho, or the title, or some portion of the title, to a special location, has erred, it is an error of fact. A party who claims that such title should have been found for him, instead of the party mentioned in the finding, cannot present the alleged error to this Court for review by means of a statement on appeal, for such statement is intended solely for the purpose of bringing up alleged errors of law. Nor can the same result be attained by regarding the statement as embodying a bill of [372]*372exceptions, as provided for by section one hundred and eighty of the Practice Act, in case of defective findings. When the Court has found that a certain party holds a particular title, and in that respect has erred, the findings cannot be said, within the meaning of that section, to be defective, and the Court cannot be called upon to substitute another finding in its place. But had the Court omitted to find as to the ownership of the particular title in question, the findings would have been defective; and if the Court had refused to find upon that issue, after being requested so to do, it would have been error.
The facts stated in the findings must be regarded as true, for all the purposes of the appeals, as the appeals were taken from the judgment alone; and the only questions which arise are those relating to the conclusions of law to be drawn from the facts in the case, and the question respecting the substiution of certain parties.
On the last trial it was found by the Court, that while Bartolome Bojorques and his eight children were tenants in common of the rancho, ‘‘there was an understanding among them as tenants in common that each might sell specific portions of said rancho by metes and bounds, and receive the consideration therefor, and that the land so sold should come out of the share of the one who sold the land and received the consideration; that under said understanding the deeds by metes and bounds were made.” It is also found “that the grantees of the undivided and other interests of the original nine claimants, named in the deed of Bartolome Bojorques to his eight children, had no notice of the existence of the facts found in this finding, in regard to the understanding between the nine original cotenants or the application of the proceeds of the sales.”
Certain of the defendants, who claim specific portions of the rancho, aver in their answer that immediately after the execution of the deed, by which Bartolome Bojorques con[373]*373veyed to his eight children the undivided eight ninths of the rancho, Bartolome and his children made a parol agreement between themselves, to the effect that each might sell and convey the entire title in and to portions of the rancho, to be described by metes and bounds; that such conveyance was to operate as and be a partition; and that each parcel so sold should come out of the share of the person or persons conveying it; and it is averred that the several deeds of the special locations were executed under and in accordance with that agreement. A large portion of those who acquired title under the conveyances of the special locations, have not set up the parol agreement for a partition. They of course cannot avail themselves of that agreement, for it does not constitute a legal title, but in any view, it is only an equity, of which a party cannot have the benefit without pleading it. Those parties who acquired undivided interests in the rancho, are not chargeable with the parol agreement for the partition, for it is found that they had no notice of it. The possession which the purchasers of the special locations took and held, did not impart notice to subsequent purchasers from their grantors of the parol agreement. The inquiry which was incumbent on them because of such possession, was fully satisfied by the deeds for the special locations, for they were sufficient to account for such possession, and they were under no obligation to search or inquire for any other possible right, title, or interest which the purchasers of the special locations may have held.
We have thus far considered the questions touching the parol agreement for a partition, upon the assumption that the agreement was valid. But was that agreement valid and binding upon the original tenants in common—Bartolome and his children?
A contract which is entered into by several parties, for the purpose of effecting a partition of lands, which they hold in common, must be binding upon all the parties, or it binds [374]*374none. The partition, whether it operates as a mutual transfer or release of title, or only as a severance of the unity of possession, will fail unless it operates upon, and affects the title or possession of all the tenants in common. If one or more of them are not bound by the contract, the purpose fails of accomplishment, for no one then, will become a tenant in severalty.
At the time when the parol agreement for the partition was made, three of the tenants in common were married women. The Act of eighteen hundred and fifty, defining the rights of husband and wife, requires an instrument in writing, signed by the husband and wife, in case of a sale or other alienation of the wife’s separate property.
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By the Court, Rhodes, J.:
Three separate appeals from the judgment were taken by different parties to this action, but the records are alike, [371]*371except that in one there is a statement on appeal. The three appeals will be considered together.
On the former appeal the principal question was whether the holders of the special locations—those who had acquired title to specific parcels of the rancho from one or more of the tenants in common of the rancho—were necessary parties to the action; and in passing upon that question, it became necessary to ascertain what title to a special location would pass by virtue of a deed executed by one or more of the tenants in common of the rancho. It was then held—and that is the law of this case—that the holders of the special locations were necessary parties to the action for partition ; and that each of them, by virtue of the deed of the tenant in common under whom he claimed, acquired the title of such tenant in common in the special location described in the deed, and that he thereby became a tenant in common of each special location—that he stood precisely in the place of his grantor, in respect to the special location, and as to it became a tenant in common with those tenants in common of the rancho, who had not united in his deed.
The finding of the facts is not attacked by any of the present appellants, except John McBrown and Samuel Brown, who, in their statement on appeal, specify as errors the refusal of the Court to find certain facts in respect to their title. The findings, as we understand them, cover the whole title to the rancho, and if the Court, in finding that a certain party holds a particular title to the rancho, or the title, or some portion of the title, to a special location, has erred, it is an error of fact. A party who claims that such title should have been found for him, instead of the party mentioned in the finding, cannot present the alleged error to this Court for review by means of a statement on appeal, for such statement is intended solely for the purpose of bringing up alleged errors of law. Nor can the same result be attained by regarding the statement as embodying a bill of [372]*372exceptions, as provided for by section one hundred and eighty of the Practice Act, in case of defective findings. When the Court has found that a certain party holds a particular title, and in that respect has erred, the findings cannot be said, within the meaning of that section, to be defective, and the Court cannot be called upon to substitute another finding in its place. But had the Court omitted to find as to the ownership of the particular title in question, the findings would have been defective; and if the Court had refused to find upon that issue, after being requested so to do, it would have been error.
The facts stated in the findings must be regarded as true, for all the purposes of the appeals, as the appeals were taken from the judgment alone; and the only questions which arise are those relating to the conclusions of law to be drawn from the facts in the case, and the question respecting the substiution of certain parties.
On the last trial it was found by the Court, that while Bartolome Bojorques and his eight children were tenants in common of the rancho, ‘‘there was an understanding among them as tenants in common that each might sell specific portions of said rancho by metes and bounds, and receive the consideration therefor, and that the land so sold should come out of the share of the one who sold the land and received the consideration; that under said understanding the deeds by metes and bounds were made.” It is also found “that the grantees of the undivided and other interests of the original nine claimants, named in the deed of Bartolome Bojorques to his eight children, had no notice of the existence of the facts found in this finding, in regard to the understanding between the nine original cotenants or the application of the proceeds of the sales.”
Certain of the defendants, who claim specific portions of the rancho, aver in their answer that immediately after the execution of the deed, by which Bartolome Bojorques con[373]*373veyed to his eight children the undivided eight ninths of the rancho, Bartolome and his children made a parol agreement between themselves, to the effect that each might sell and convey the entire title in and to portions of the rancho, to be described by metes and bounds; that such conveyance was to operate as and be a partition; and that each parcel so sold should come out of the share of the person or persons conveying it; and it is averred that the several deeds of the special locations were executed under and in accordance with that agreement. A large portion of those who acquired title under the conveyances of the special locations, have not set up the parol agreement for a partition. They of course cannot avail themselves of that agreement, for it does not constitute a legal title, but in any view, it is only an equity, of which a party cannot have the benefit without pleading it. Those parties who acquired undivided interests in the rancho, are not chargeable with the parol agreement for the partition, for it is found that they had no notice of it. The possession which the purchasers of the special locations took and held, did not impart notice to subsequent purchasers from their grantors of the parol agreement. The inquiry which was incumbent on them because of such possession, was fully satisfied by the deeds for the special locations, for they were sufficient to account for such possession, and they were under no obligation to search or inquire for any other possible right, title, or interest which the purchasers of the special locations may have held.
We have thus far considered the questions touching the parol agreement for a partition, upon the assumption that the agreement was valid. But was that agreement valid and binding upon the original tenants in common—Bartolome and his children?
A contract which is entered into by several parties, for the purpose of effecting a partition of lands, which they hold in common, must be binding upon all the parties, or it binds [374]*374none. The partition, whether it operates as a mutual transfer or release of title, or only as a severance of the unity of possession, will fail unless it operates upon, and affects the title or possession of all the tenants in common. If one or more of them are not bound by the contract, the purpose fails of accomplishment, for no one then, will become a tenant in severalty.
At the time when the parol agreement for the partition was made, three of the tenants in common were married women. The Act of eighteen hundred and fifty, defining the rights of husband and wife, requires an instrument in writing, signed by the husband and wife, in case of a sale or other alienation of the wife’s separate property. The provision of this novel contract, that the sale and conveyance of a specific parcel of the rancho, by one of the tenants in common, should operate as a conveyance in fee of the entire title, and as a partition (as stated in the answers of certain of the defendants), or operate only as a partition (as stated in the findings) could have effect, only on the theory that such conveyance by one tenant in common, or the parol contract, or both together, transferred the title of the other tenants in common, or amounted as a release of their several interests, or in some other mode extinguished their rights therein; and whatever may have been the mode or process by which the intended result was to be reached, it is manifest that the result could not be attained, except by means of an alienation made by the other tenants in common of their interest in the land which was conveyed by the one tenant in common. Such an alienation, when made by a married woman, is imperatively required by the statute to be in writing, and signed by both her and her husband. The parol agreement, therefore, was not binding upon the tenants in common, who were married women when the contract was attempted to be made. It will not be enforced in equity against the other tenants in common, for their assent to the [375]*375contract- was given under the belief, that all the tenants in common were parties to the agreement; and the consideration for the undertaking on their part was the undertaking on the part of all the parties; and it is obvious that it ought not to be upheld as against one, unless it could.be enforced as against all the tenants in common.
Some of the points presented by the administrator of Angel Bojorques, deceased, Antonio Talimantes, José Williams, and Isaac B. Jewell, are entirely disposed of by the foregoing views. It is urged that those holding interests in the rancho, acquired through the deed of Theodocia, purporting to convey her undivided interest in the rancho, are only entitled to one undivided ninth of the rancho, after deducting the special locations conveyed by her. This position is mainly based on the fact, that the complaint avers the execution by her of several of the deeds of special locations, and that the averments are not denied by the answers. Without adverting to the question of the effect of a failure to deny averments of that character, it is sufficient to say that the appellants above named are not interested in the question presented by that point, and will not be affected by its decision. If Theodocia made no valid deed of any special location, the grantees of her undivided interest in the rancho acquired all her interest therein—an undivided ninth; and if she did convey one or more special locations, the grantees thereof, together with her grantees of her undivided interest in the rancho, took only one undivided ninth of the rancho. The other original tenants in common, and their grantees, whether of undivided interest or of special locations, are unaffected, either in the amount of their interests, or their rights or equities, in respect to the partition, by the question whether Theodocia did or did not convey any of the special locations. The question concerns only those who claim under her.
The points of the same appellants in respect to the deeds [376]*376to the Denmans, and to Hewlett (in one of which, it is alleged in the complaint that Angela, and in the other that Theodocia joined), are not tenable for the reasons just stated. The appellants claim neither under nor adversely to any of the parties to those deeds, but under other of the original tenants in common; and it cannot be true, as asserted by them, without overturning the law of the case and reversing the rules here laid down, that “ by charging Theodocia and Angela, as we claim they should be charged [with certain special locations], we obtain in the division of the estate a larger share.” A party claiming under one deed of a special location, is not bettered by making it appear that it is admitted by the pleadings that another deed of another special location, executed to other parties, was, in fact, executed by more of the original tenants in common than are stated by the findings. If the Court overlooked such admission of the pleadings, the error cannot prejudice any one but those claiming under the last mentioned deed.
The defendant Winn has not appealed; and the point in respect to the date of his contract for the purchase of a certain portion of the rancho, cannot be raised by these appellants, for the decision of the question either way is of no interest to them.
The appellants, John McBrown and Samuel Brown, present the point that Dalton, Warner, and others, who were found to be owners of certain interests in the lands, were not parties to the action, and are, therefore, not bound by the judgment. The record, and the stipulation thereto annexed, show that various orders were made, by which all the persons named by these appellants were substituted in the place of certain parties to the action, as to certain interests in the lands, specified in the orders. Those orders appear on their face to be valid, but whether the Court in fact erred in making the orders, cannot now be inquired into, because no objection or exception thereto was taken, when [377]*377the orders were made. It was, without doubt, irregular and erroneous to order judgment that the persons thus substituted were the owners of certain interests in the lands, in the absence* of any allegations in the pleadings showing such ownership; but the error may readily be remedied on the return of the cause to the Court below, by permitting answers to be filed by the parties who were substituted, averring their respective interests, and the time and means of their acquisition. This course is proper, for the record shows that, as to some of the parties thus substituted (and it will be presumed as to all of them), evidence showing the transfer of the interest in the lands, was offered and received without objection.
The respective parties claiming under the deeds of the special locations—the deeds of parcels of the rancho, described by metes and bounds—acquired the interest therein which their respective grantors held at the time of the execution of the deeds—that is to say, if a deed was executed by only one of the original tenants in common (Bartolome Bojorques and his children), it conveyed one undivided ninth of the special location, and if it was executed by two or more of the original tenants in common, it conveyed one undivided ninth of the special location, for each of the original tenants in common who united in the deed. The grantee of each of such deeds, is entitled to have his interest in the special locations set off to him, if it can be done without injury to the original tenants in common who did not unite in the conveyance, and their successors in interest. The heirs and assigns of such grantee are entitled to the same relief; and so also is the grantee of a special location, which was granted by any owner of an undivided interest in the rancho, other than the original cotenants.
In making the partition, the conveyance of a special loca[378]*378tion may be disregarded, if it be found necessary to do so, in order to make a just and equitable allotment of the lands among those who own undivided interests in the rancho, other than those who executed the deed for the special location, and their successors in interest.
Cause remanded with directions to permit the parties who have been substituted in the place of other parties to the action, to file answers setting up their interest in the premises; and with the further directions to modify the judgment in accordance with this opinion—the costs of these appeals to be apportioned among the parties, with the other costs in the action.
[The foregoing opinion was delivered at the July Term, 1873; and petitions for rehearing or modification of the judgment having been presented, the following opinion was delivered at the October Term, 1873.]
Three petitions for rehearing or modification of the judgment have been filed. In one of the petitions it is suggested that the Court overlooked certain allegations in the complaint; and it is insisted that the matters therein stated stand as admitted facts in the case, because they were not denied in the answer. The complaint contains many allegations in this form, viz: “ That Maria Bojorques * * * and Theodosia Bojorques, on the 24th day of January, A. D. 1853, executed an instrument in writing, of record in book 'A’ of deeds, Marin County Records, page two hundred and fifty-seven, etc., purporting to convey to John Tustin a specified tract of one hundred and- sixty acres of land, by metes and bounds, and being a portion of the said rancho.” This allegation does not relate in any manner to the plaintiff’s title. It does not state that the instrument was, in [379]*379fact, a conveyance, nor that it, in fact, conveyed any title to Justin, nor that he held any title to the lands mentioned in the instrument, at the commencement of the action. The matter averred is not an ultimate fact—that is to say, a fact which is required to be stated in a complaint in partition, and which, if not denied by the answer, would stand as admitted ; but it is merely matter of evidence, which might be stricken from the complaint, and must be regarded as surplusage.
In respect to the petition of John McBrown and Samuel Brown, it is only necessary to say that the persons who were substituted for them as defendants will be permitted in their answers to set up, only such right, title, or interest in the lands as the Court found that they respectively held—that is to say, their answers must conform to the findings and interlocutory decree.
The petition of D. Morrow and others is, in effect, a request that this Court will anticipate the difficulties and contingencies that may present themselves to the Commissioners in making the partition, and lay down rules for their guidance in each instance. We have no doubt that the Commissioners and the District Court will be found competent to make an equitable and just partition; and we must decline to lay down any rules for their guidance until the exigencies of the case require it.
Petitions denied.
Mr. Chief Justice Wallace, being disqualified, did not participate in the decisions of these causes.