Scott, Judge,
delivered the opinion of the court.
This was an action of ejectment, begun in March, 1848, to recover possession of a lot of ground in the city of Hannibal, in this state. The plaintiffs in error, who were also plaintiffs below, based their right of recovery upon the following deed : “ This list and instrument of writing is to make known to all whom it may concern, that, after the sales of lots in the town of Hannibal, (of a part thirty-two squares, which were laid off,) the sales of which have been examined by each of the proprietors, this day an equal division of the remaining unsold lots of said thirty-two squares or blocks was equally made, according to the different interests in said town property, and we, the said proprietors, do hereby relinquish to Stephen Rector, (one of the proprietors,) the lots marked and numbered in the columns to the left,” (here follows a list of the lots conveyed by the deed, including lot number seven, in block number thirty-one, the lot in controversy,) “each lot to be sixty-five and a half feet front, by one hundred and forty-two feet back. To have and to hold the same forever, and we furthermore warrant and defend said lots against the claim or claims of all and every person whatsoever. Should there be surveyed out at any future time more lots in the town tract [23]*23(first located by Thompson Bird, Elias Hector, Thos. ■ C. Rector and Laban Glasscock,) the same will vest as an undivided property belonging to the present proprietors.
“In testimony whereof, and of the whole of the foregoing agreement, we, the proprietors of Hannibal, have hereunto set our hands and seals the day and date above written.
“R: GENTRY, (seal.)
“THOS. 0. RECTOR, (seal.)
“WM. V. RECTOR, (seal.)
“ STEPHEN RECTOR, (seal.)
“M. D. BATES, (seal.)
“For TH’N. BIRD.”
This deed was acknowledged by the parties, in St. Louis county, before a justice of the peace, on the 17th of April, 1819, but was never recorded. In columns on the left hand margin of the paper on which the deed was written, there was a list containing a description of the lots by number, and the various blocks in which they were situated. The plaintiffs were the widow and child of Stephen Rector, named in the foregoing deed as the grantee. The lot in controversy is parcel of a tract of land owned by Abram Bird, sr., who authorized his son, Thompson Bird, by power of attorney, to dispose of it. A patent for the tract of land containing 640 acres, was issued to A. Bird, in 1824. .He died in 1821, leaving a wife and five children, of whom Thompson Bird was one. Under his power of attorney, Thompson Bird conveyed one half the tract of land to Elias Rector, and one eighth to M. D. Bates. Elias Rector afterwards conveyed his interest to the above named persons, R. Gentry, Thos. C. Rector, Win. Y. Rector and Stephen Rector. Under the direction of these last named individuals and Thompson Bird, M. D. Bates laid off the town of Hannibal, and the proprietors made a public sale of lots in 1819, and afterwards, in the same year, a division of the remaining lots took place among the proprietors, who executed mutual deeds of partition with covenants of warranty. The deed above recited is one of the several deeds which [24]*24were executed in consummation of tbe agreement among tbe several proprietors. It was afterwards discovered, that tbe power of attorney, under which Thompson Bird acted, was defective, and tbe representatives of Elias Rector, in a suit, recovered back tbe purchase money for tbe land which Bird had conveyed to Mm, and which he had conveyed to the above named proprietors, R. Gentry, T. 0. Rector, Wm. Y. Rector and Stephen Rector. Tbe title under which the town was laid off and the partition among the proprietors was made, thus having failed, Thompson Bird, M. D. Bates and Wm, Y. Rector subsequently acquired a new title to the land on which the town was laid off; and this suit is brought on the warranty contained in the deed above recited to Stephen Rector, on the ground that the subsequently acquired title passed by estoppel to Stephen Rector and those claiming under him, as against Thompson Bird, M. D. Bates and W, Y. Rector and those claiming under them.
On the case made, the court below instructed the jury that the plaintiffs were not entitled to recover.
It was contended for the plaintiffs that those claiming under Bird, Bates and W. Y. Rector, are estopped by the warranty contained in their deed of partition to Stephen Rector, from denying the right to the premises in controversy of Stephen Rector and those claiming under him, and that the title subsequently acquired by Bird, Bates and W. Y. Rector, enured, by virtue of the warranty, to Stephen Rector and his heirs and assigns, or that the estoppel created by the warranty operated to pass the after acquired estate, and will, therefore, sustain an ejectment.
For the defendant, it was maintained that the personal covenant of warranty, used in our system of conveyancing, is not identical with the warranty real of the common law, the one being essentially different from the other : that if, however, the personal covenant is to be considered identical in its operation with the real warranty of the ancient law, yet, the effect of passing an after acquired estate, in all cases, was never [25]*25imputed by that law to the real warranty ; that the effect of a real warranty was, to oblige the warrantor to defend the estate to which it was annexed, and was used either for defence or redress.- Eor defence, by way of rebutter or estoppel against the grantor, and for redress, by way of voucher or warran-tia chartae, when the warrantee was sued for the land warranted ; that to make a warranty operate by way of rebutter, or to constitute a bar, the estate to be barred must have been divested or turned to a right, at the time or before the warranty was made, and must have been a continuing estate, at the time it claimed the protection of the warranty.
1. It is the received opinion of the profession, that the remedy by the ancient warranty, never had any practical existence in the United States, Chancellor Kent says that the ancient remedy on the warranty is inadequate and inexpedient, and has become entirely obsolete. 4 Kent, 472. The principles maintained by the plaintiffs prevail in many states where modes of alienation exist similar to our own, and although they may not harmonize with some rules of the ancient common law, whose utility and importance are not so readily perceived as formerly, yet they seem now supported by too great weight of authority, and have too long prevailed, to be disregarded with safety to titles.. No _question of this kind has arisen in our courts, independent of our statute, and it has been suggested, that we are at liberty to take a course that will harmonize with the ancient law. Although the question may not have arisen here, yet we know that the profession in this state is mostly composed of those who have been educated in other states, and in the absence of opposing statutes, they have naturally enough conceived that our courts would take the law as it is understood in our sister states. This consideration should restrain us from entering on any new course-in relation to this subject.
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Scott, Judge,
delivered the opinion of the court.
This was an action of ejectment, begun in March, 1848, to recover possession of a lot of ground in the city of Hannibal, in this state. The plaintiffs in error, who were also plaintiffs below, based their right of recovery upon the following deed : “ This list and instrument of writing is to make known to all whom it may concern, that, after the sales of lots in the town of Hannibal, (of a part thirty-two squares, which were laid off,) the sales of which have been examined by each of the proprietors, this day an equal division of the remaining unsold lots of said thirty-two squares or blocks was equally made, according to the different interests in said town property, and we, the said proprietors, do hereby relinquish to Stephen Rector, (one of the proprietors,) the lots marked and numbered in the columns to the left,” (here follows a list of the lots conveyed by the deed, including lot number seven, in block number thirty-one, the lot in controversy,) “each lot to be sixty-five and a half feet front, by one hundred and forty-two feet back. To have and to hold the same forever, and we furthermore warrant and defend said lots against the claim or claims of all and every person whatsoever. Should there be surveyed out at any future time more lots in the town tract [23]*23(first located by Thompson Bird, Elias Hector, Thos. ■ C. Rector and Laban Glasscock,) the same will vest as an undivided property belonging to the present proprietors.
“In testimony whereof, and of the whole of the foregoing agreement, we, the proprietors of Hannibal, have hereunto set our hands and seals the day and date above written.
“R: GENTRY, (seal.)
“THOS. 0. RECTOR, (seal.)
“WM. V. RECTOR, (seal.)
“ STEPHEN RECTOR, (seal.)
“M. D. BATES, (seal.)
“For TH’N. BIRD.”
This deed was acknowledged by the parties, in St. Louis county, before a justice of the peace, on the 17th of April, 1819, but was never recorded. In columns on the left hand margin of the paper on which the deed was written, there was a list containing a description of the lots by number, and the various blocks in which they were situated. The plaintiffs were the widow and child of Stephen Rector, named in the foregoing deed as the grantee. The lot in controversy is parcel of a tract of land owned by Abram Bird, sr., who authorized his son, Thompson Bird, by power of attorney, to dispose of it. A patent for the tract of land containing 640 acres, was issued to A. Bird, in 1824. .He died in 1821, leaving a wife and five children, of whom Thompson Bird was one. Under his power of attorney, Thompson Bird conveyed one half the tract of land to Elias Rector, and one eighth to M. D. Bates. Elias Rector afterwards conveyed his interest to the above named persons, R. Gentry, Thos. C. Rector, Win. Y. Rector and Stephen Rector. Under the direction of these last named individuals and Thompson Bird, M. D. Bates laid off the town of Hannibal, and the proprietors made a public sale of lots in 1819, and afterwards, in the same year, a division of the remaining lots took place among the proprietors, who executed mutual deeds of partition with covenants of warranty. The deed above recited is one of the several deeds which [24]*24were executed in consummation of tbe agreement among tbe several proprietors. It was afterwards discovered, that tbe power of attorney, under which Thompson Bird acted, was defective, and tbe representatives of Elias Rector, in a suit, recovered back tbe purchase money for tbe land which Bird had conveyed to Mm, and which he had conveyed to the above named proprietors, R. Gentry, T. 0. Rector, Wm. Y. Rector and Stephen Rector. Tbe title under which the town was laid off and the partition among the proprietors was made, thus having failed, Thompson Bird, M. D. Bates and Wm, Y. Rector subsequently acquired a new title to the land on which the town was laid off; and this suit is brought on the warranty contained in the deed above recited to Stephen Rector, on the ground that the subsequently acquired title passed by estoppel to Stephen Rector and those claiming under him, as against Thompson Bird, M. D. Bates and W, Y. Rector and those claiming under them.
On the case made, the court below instructed the jury that the plaintiffs were not entitled to recover.
It was contended for the plaintiffs that those claiming under Bird, Bates and W. Y. Rector, are estopped by the warranty contained in their deed of partition to Stephen Rector, from denying the right to the premises in controversy of Stephen Rector and those claiming under him, and that the title subsequently acquired by Bird, Bates and W. Y. Rector, enured, by virtue of the warranty, to Stephen Rector and his heirs and assigns, or that the estoppel created by the warranty operated to pass the after acquired estate, and will, therefore, sustain an ejectment.
For the defendant, it was maintained that the personal covenant of warranty, used in our system of conveyancing, is not identical with the warranty real of the common law, the one being essentially different from the other : that if, however, the personal covenant is to be considered identical in its operation with the real warranty of the ancient law, yet, the effect of passing an after acquired estate, in all cases, was never [25]*25imputed by that law to the real warranty ; that the effect of a real warranty was, to oblige the warrantor to defend the estate to which it was annexed, and was used either for defence or redress.- Eor defence, by way of rebutter or estoppel against the grantor, and for redress, by way of voucher or warran-tia chartae, when the warrantee was sued for the land warranted ; that to make a warranty operate by way of rebutter, or to constitute a bar, the estate to be barred must have been divested or turned to a right, at the time or before the warranty was made, and must have been a continuing estate, at the time it claimed the protection of the warranty.
1. It is the received opinion of the profession, that the remedy by the ancient warranty, never had any practical existence in the United States, Chancellor Kent says that the ancient remedy on the warranty is inadequate and inexpedient, and has become entirely obsolete. 4 Kent, 472. The principles maintained by the plaintiffs prevail in many states where modes of alienation exist similar to our own, and although they may not harmonize with some rules of the ancient common law, whose utility and importance are not so readily perceived as formerly, yet they seem now supported by too great weight of authority, and have too long prevailed, to be disregarded with safety to titles.. No _question of this kind has arisen in our courts, independent of our statute, and it has been suggested, that we are at liberty to take a course that will harmonize with the ancient law. Although the question may not have arisen here, yet we know that the profession in this state is mostly composed of those who have been educated in other states, and in the absence of opposing statutes, they have naturally enough conceived that our courts would take the law as it is understood in our sister states. This consideration should restrain us from entering on any new course-in relation to this subject. The strong views presented by the counsel for the defendant are supported by a great weight of authority, but the reasoning on which they are founded has-been insensibly undermined, and principles which stood out in [26]*26bold relief when the feudal policy was the idol of the law, have gradually'lost their force. Our statute, allowing the conveyance of lands whilst in the adverse possession of another, has overturned many of the rules of the ancient law of alienations. Smith’s Leading Cases, with American Notes, 459, 460-1-2, 3. Pike v. Galvin, 29 Maine Rep. 183. As the opinion of the court will turn on another point in the case, without going into an examination of the. authorities in support of the views advanced by the plaintiffs to sustain their action on the estop-pel created by the warranty in the deed of partition, we will proceed to state the grounds on which our judgment is based.
2. It cannot escape observation, that the doctrine of estop-pel, as applied in this case, is very harsh in its operation. A number of proprietors of a town, supposing that they have a title to the land on which the town is laid off, make an equal partition of the lots amongst themselves, and mutually convey with warranty. The entire title to the land which is the subject of partition afterwards fails. If the matter ended here, it would not be maintained that any one of the proprietors had a cause of action against the others, as what he recovered on his warranty, he, in turn, would be compelled to refund to him from whom he had recovered on the warranty he had given. The different warranties would compensate each other,' and it would be useless to sue, as each party in the end would be in the situation in which he was before suit was brought. The parties would be all even, and there would be no obligation, in law or morality,, resting on one to indemnify another. After the failure of the first title, one or more of the proprietors acquire a new and distinct title to the land on which the town was laid off, and a former proprietor, who has neither contributed, nor offered to contribute any thing towards the acquisition of the new title, lays claim to all the lots conveyed to him by the deed of partition. The common law implied no warranty when partition was made between joint tenants and tenants in common. Indeed, by the common law, partition was not com-pellable among them. The warranty was only implied on par[27]*27tition among coparceners, and only extended to tbe land which was the subject o£ the partition. The doctrine which makes an outstanding title, bought in by one joint tenant or tenant in common, enure to the benefit of his co-tenants, it seems, is one of equitable cognizance, and courts of equity would mould and apply it so as to do justice among the tenants. Van Horne v. Fonda, 5 J. C. R. 388.
The fact that Waugh appears- on the -record as a trespasser does not affect the merits of this question. This suit is maintained and defended, with a view to .settle the rights of the different claimants to the lot in controversy, and he must be regarded as the representative of those who purchased the new title, and a decision against him in the ease, as presented, will bar their rights. Nor do we consider it as affected by the fact, that Bates and Bird, in their subsequent conveyances, indemnified themselves against the claim of those with whom they had formerly made partition. The principle on which the action is sought to be maintained is unaffected by these circumstances, is one of dry and technical law, and when applied to the facts of this ease has nothing to commend it. We feel no reluctance in answering a technical action with a technical objection.
3. In the deed on which this action is founded, there are no words of perpetuity used in conveying the estate to Stephen Rector. According to the law in force at that day, the words employed only conveyed a life estate, and the duration of the warranty is only co-extensive with the estate to which it was annexed. The warranty, then, was extinct on the death of Stephen Rector. In 4 Kent, 5, it is said, the word “heirs” is necessary at common law to create, by deed, an estate in fee simple. Further on, he says, that this rule does not apply to a partition between joint tenants, coparceners and tenants in common, nor to releases of right to land, by way of discharging or passing the right, by one joint tenant or coparcener to another. In taking a distinct interest in this separate parcel of the land, the releasee takes the like estate in quantity, [28]*28which he had before in common. This is a question in which the matter of intent has nothing to do. The law has appropriated a certain word, by which an estate in fee simple can only be created by deed. If that word is omitted, however clear and manifest the intent may be, an estate in fee will not pass. It is conceded that, as between joint tenants and co-parceners, a fee may pass by a release without the word heirs, but it is apprehended that one tenant in common cannot release to another. A deed intended as a release between tenants in common, although it cannot have that effect, may yet operate as some other kind of conveyance ; but to make it effectual as such to pass a fee, proper words of limitation must be employed. Cruise says, one tenant in common cannot release to his companion, because they have distinct freeholds, but they must pass them estates by feoffment. Vol. 4, tit. 32, chap. 6, sec. 25. So he says, if one coparcener or joint tenant releases all his right to another, it will pass a fee without the word heirs. Ib. chap. 21, sec. 7. Lomax says that partition between tenants in common, who having several' and distinct freeholds, might have conveyed to each other by feoffment, might, at common law, have been effected by livery of seizin. The adjustment between them in severalty of the estate, derived to them in common by distinct titles, could only be effectuated by a conveyance, accompanied by that notoriety indispensable to all conveyances at common law. 2 vol. 96. So again, one tenant in common cannot release to his companion, because they have distinct freeholds ; but they must pass their estates by feoffment. Ib. 98. Preston on Abstracts says, when several persons are tenants in common, the title to each share is to be carried on, precisely in the same manner as if the title to that share was a title to a distinct farm. 3 vol. 48. Hilliard says, joint tenants and coparceners may release to each other. In a release of this kind, a fee will pass without words of limitation. The releasee is deemed in law to hold, not by the release, but by the original limitation to all the parties. The release is not an alienation, but a mere dis[29]*29charge of the claims of one to the other. Hence a fee arises out of the original conveyance. Tenants in common, having distinct freeholds, cannot release to each other. 2 vol. 300, 301. Bacon says, if there be two joint tenants, and one release to the other, this passeth a fee without the word “heirs,” because it refers to the whole fee, which they jointly took and are possessed of by force of the first conveyance. But tenants in common cannot release to each other, for a release supposeth the party to have the thing in demand ; but tenants in common have several distinct freeholds, which they cannot transfer, otherwise than as persons who are sole seised. 4 vol. 455. The books may be traced to the earliest periods, and it will be found, that no author has maintained that one tenant in common can convey to another, in any other way or by a conveyance whose operation is different from those used by feoffors, between whom no such relationship exists. It follows from this that, however conveyances between tenants in common may operate, and they cannot operate by way of release, they must contain words of perpetuity to pass a fee.
Other exceptions were taken to the deed on which the plaintiffs rely for a recovery, but it is not deemed necessary to give any opinion respecting them, as the judgment will be affirmed for the reason already given.
The other Judges concur.