Johnson, Judge,
delivered the opinion of the Court:
It is insisted by counsel for the Stauntons, that the allegations of the bill are wholly insufficient to enable the plaintiff to maintain his suit against the said Staun-tons or either of them ; that the plaintiff files with his bill the contract between Collins and J. G. Staunton for the sale and purchase of the one hundred acres and the written guaranty of said contract by himself and his co-grantors, and alleges that the purchase-money for the one hundred acres remains unpaid, and asks that the said land be sold to pay said purchase-money, but does not allege that the notes of Staunton to Collins for the purchase-money have been transferred to him, or that he is the owner of them, nor does he produce them. This is true. It does not appear from said guaranty of the contract between said Collins and Staunton, that there was any obligation whatever resting upon J. G. Staunton to pay one cent of the purchase-money to Worthington or his associates. The guaranty is signed by no person except Worthington, Longmore and Sauls-bury, and the clause relating to payment of purchase-money by Staunton to the said guarantors is this and nothing more : “And further, that upon the payment to Henry Worthington for us, by the said Staunton or his assigns, of the purchase-money and interest as agreed in said contract (i. e. the contract between Collins and [232]*232Staunton), that we, the said Henry Worthington, Hugh 'Paul Longmore and James H. Saulsbury, will release said one hundred aores of land from the lien for purchase-money from said Collins, and that each payment so made shall be applied for that purpose.” Here is clearly no obligation on the part of Staunton to pay them purchase-money, even if he had signed the paper, which he did not, but a promise merely on the part of the plaintiff and his associates, that, if Staunton would pay them the purchase-money he had agreed to pay Collins, they would release the one hundred aores from their lien for purchase-money retained in the deed to Collins. The bill does not pretend that plaintiff is the owner of the notes or obligations of Staunton to Collins for the payment of the purchase-money of the one hundred acres; and it utterly fails to show any equity against the said Stauntons or either of them as to the last named purchase-money ; and of course no decree could have been rendered against them therefor on the showing of the plaintiff’s bill.
Could the court then under the pleadings in the cause rescind the contract between Staunton and Collins ?
In Vance v. Evans et al., 11 W. Va. 342, it was held that a decree between co-defendants can only be based upon the pleadings and proofs between the complainants and defendants; that where a case is made out between co-defendants by evidence arising from pleadings between the complainants and defendants, a court of equity should render a decree between the co-defendants; but where there are no such pleadings, a court of equity cannot render a decree between the co-defendants. The principles laid down in that case result from necessity. If the rule was not adhered to, the administration of justice would become extremely difficult, if not impossible in many cas. s. It could not be known when, where or how a chancery cause would terminate if all the parties, who had any interest in the subject-matter of the bill, and who were therefore necessary defendants thereto, [233]*233could, to save time and expense, by filing their answers in that cause, or cross-bills, litigate all their differences which were in any way however remotely connected with the subject-matter of the bill, and in which plaintiff had no special interest. The collateral issues in such a case might be interminable.
We think it very clear that there is nothing in the bill of plaintiff, and nothing in any of the pleadings and proofs between the plaintiffs and defendants, that could authorize a decree between the co-defendants, Collins and Stauntons, as to their contract; and therefore the decree in this cause rescinding the contract between the said co-defendants was unauthorized. There is nothing in the guaranty of the contract, that could of itself give a court of equity jurisdiction, as it is not alleged that it was procured by fraud, or that it was founded in mistake.
This conclusion makes it not. only unnecessary, but improper, for the appellate court to construe the said contract. Nor is it necessary, as we shall see, to put any construction upon the said guaranty.
As the cross-bill was filed for the express purpose of procuring a rescission of the contract, and as we have seen the said contract could not be rescinded in this cause, the demurrer to said cross-bill ought to have been sustained.
But it is insisted that the said decree, so far as it affects the said contract between Collins and Staunton, is not to the prejudice of the appellant, and he has no right therefore to complain of it. If this were true, still if it were prejudicial to the rights of other parties in the suit, it might have to be reversed.
May it not be to the prejudice of the plaintiff? It does not rescind the contract in toto, but only so far as it related to the sale of the one hundred acres, and remits the parties to a suit at law upon the said contract; and as the plaintiff was a guarantor of the contract, the decree might be to his prejudice in any action upon the contract in a court of law. We do not decide this ques[234]*234tion, nor express any opinion as to the effect of said guaranty. For the same reason, viz.: that the decree might prejudice the rights of the plaintiff, being only apar-tial rescission, might it not also prejudice the rights of the defendant, Collins ? As the bill contains no equity against the Stauntons, the plaintiff was not prejudiced by the filing of the cross-bill, although it was improperly filed. The defendants, the Stauntons, were evidently induced to file it by the allegations in the bill, and by the attempt on the part of the plaintiff to take the benefit of the contract between the Stauntons and Collins.
It is here insisted by counsel for appellant, that the appeal and supersedeas in this cause expressly exclude from their operation certain portions of the decree of January 11,1878, and therefore no error in those portions of the decree so excluded, if any exists, can be reviewed on this appeal at the instance of either party. The counsel is mistaken as to an important fact. The appeal was allowed to the whole of said decree, and a supersedeas to all said decree, except so much thereof as ordered the land to be sold unless the defendant, B. H. Collins, should, within a time specified, pay the purchase-money. Collins is an appellee; and he here asks that said decree be reversed as to him, and the deed from the plaintiff and others to him be cancelled, and the purchase-money paid by him be refunded. The whole decree may be reviewed by the Court; and any error therein to the prejudice of any of the parties to the suit, whether appellants or appellees, complaining thereof, may be corrected. This must necessarily be so, because the effect of a general affirmance of the decree would bar any of the parties from an appeal thereafter. Newman v. Mollohan, 10 W. Va. 488.
Is the decree erroneous as to said Collins ? The decree enforces the vendor’s lien retained in the deed exhibited with the bill, and requires over $43,000.00 to be paid by Collins; and if said payment was not made within a certain time specified in said decree, the land was re[235]*235quired to be sold to pay it. Collins insists that the circuit court should have cancelled and annulled said deed for the reasons set up in his answer, and that his purchase-money paid should have been decreed to be paid to him. .
What was the effect of the conveyance of Puffner, to Hale, Worthington and Longmore of one rnoiety of his interest in the large tract of land owned jointly by himself and Daniel Pu finer, in which deed he purports to convey said land by metes and bounds, as lying south of a certain red line drawn across the map of said land ? And also what is the effect of the deed from Hale, Worthington and Longmore for the same interest conveyed by precisely the same description, made to the defendant Collins? These deeds were both made before the partition of the land, as was also the contract between Staunton and Collins; and the partition, as we have seen, allotted to others about three hundred acres of the land sold to Collins.
It is of course well settled that a co-tenant may convey at pleasure his undivided interest in the whole tract without the knowledge or consent of his companions in interest. Freeman on Co-tenancy and Partition, section 194 and cases cited. The same author in section 199 says: “ That deeds made by one co-tenant conveying a part of the real estate of a co-tenancy by metes and bounds are undoubtedly void, and the other co-tenants may at all times so treat them, is a general declaration made in express terms in some of the cases, and well supported by a long train of decisions, though we cannot see that these decisions are in turn supported by reason, or are necessary to the preservation of the rights of the other co-tenants.” He cites a large number of these decisions, which upon a close examination do not, I think, go to the extent he seems to think they do.
In Carroll v. Norwood, 1 Har. & J. 100. Chase, Chief Justice, declared in general terms that a tenant in com[236]*236mon of an undivided tract of land could not convey his moiety describing the same by courses and distances.
In Griswold v. Johnson, 5 Conn. 363, the court by Hos-mer, Chief Justice, said: “The deed of this common estate by metes and bounds, the one tenant in common then attempting to make a partition of the property without any co-operation of the other, is undoubtedly void. The point is at rest and not to be questioned.”
To the same effect is Porter v. Hill, 9 Mass. 34. In these cases the co-tenants or their assigns, to whose prejudice the deeds were being used, were interested parties, and while the language of the court was too broad perhaps, all that properly was decided in these eases was, that a co-tenant could not to the prejudice of another co-tenant convey a part of the undivided property by metes and bounds. The proposition maintained in the great majority of the cases cited by Freeman is, that a tenant in common cannot convey a distinct portion of the estate by metes and bounds to the ¡prejudice of his co-tenants or their assigns ; and that as to them such deed is inoperative and void, though many of them expressly hold that such deed will bind the grantor therein. Richardson v. Miller, 48 Miss. 311; Boston Franklinite Co. v. Condit & Torrey, 19 N. J. Eq. 394; Duncan v. Sylvester, 24 Me. 482; Great Falls Co. v. Worster, 15 N. H. 412; Holcomb v. Coryell, 3 Stock. 548; Dorn v. Durham, 24 Tex. 366; Good v. Coombs, 28 Tex. 34; Primm v. Walker, 38 Mo. 94; Varnum v. Abbot, &c., 12 Mass. 480.
In Lessee of White v. Sayre, 1 Ohio 304, it' was held, that a “tenant in common can convey a part of his undivided estate, and that a deed by a tenant in common purporting to convey in severalty is a good conveyance for the grantor’s undivided part within its boundaries.” To the same effect is Treon’s lessees v. Emerick, 6 Ohio 392.
In Prentiss’s Case, 7 Ohio 470, it was held that “where a tenant in common has made separate conveyances of his entire right in various parcels of the land held in com[237]*237mon, so that each purchaser’s title is separate and distinct, the other tenant in common cannot sustain a joint suit for partition against such purchasers, but must bring a a separate suit against each.” This is certainly giving an undue effect to the deed of one tenant in common to the prejudice of his co-tenant.
In Dennison v. Foster, et al., 9 Ohio 126, it was held that “one tenant in common cannot work a division of the common property by conveying his share in a deed defining its limits by metes and bounds. The effect of such deed is to pass to the purchaser the grantor’s proportional interest in the part described in the deed. Tenants making such separation of interests and their heirs are bound by it, especially if the deed contains covenants of warranty, and it may be ratified by the co-tenants.”
In Barnhart v. Campbell, 50 Mo. 597, it is held against the whole current of authority, as I conceive, “that a conveyance of his interest by metes and bounds by a tenant in common is valid, even as to his co-tenant. The statute of partition prevents any injustice.” The court by Adams Judge said, that the declaration in Primm v. Walker, 38 Mo. 94, above cited, “that a conveyance by a tenant in common of a portion of the common land by metes and bounds would be void as to his co-tenant,” was a mere obiter dictum of the judge, and could not be regarded as authority. He further says, “In England and many of our sister States the law seems to be well settled, that such a conveyance is void as to the co-tenant who does not consent. The only reason given is, that it would render a partition of the land more difficult, and compel the co-tenant to take smaller pieces and more of them to make up his share. But this^ reason is not applicable to our laws concerning partitions. Here the partition is not necessarily made in kind, as it is in other states and in England; but if partition in kind would prejudice the rights of the parties, the land is required to be sold, and the proceeds divided among the [238]*238parties according to their respective rights. Each party has the chance to purchase such quantities as he may think proper.” To my mind the reasoning of the learned judge is far from satisfactory. That one tenant in common, against the consent of his co-tenants, by his act can put it out of the power of his co-tenant to have partition in kind of the common property, is a proposition not sustained either by justice, reason or authority. It might be impossible for the co-tenant to protect himself by a purchase of the property, or any part thereof; again, ho might be very averse to buying small parcels of land not adjoining each other. He might want his portion all laid off together and near property that he individually owned, and a court of equity would, so lay it off, if it could be done consistently with the rights of his co-tenants; but if one co-tenant by his mere deeds has the right to partition the property to suit himself, he not only may ruin his co-tenant, but he is permitted to usurp the powers of a court of chancery. It is no answer to say, “Let the whole properly be sold, and we will divide the proceeds.” That may be just what the other does not want; he has his interest, but he has no money with which to buy more, and he does not want his interest sacrificed by a sale.
In Stark v. Barrett, 15 Cal. 361, it was held, that “one joint tenant or tenant in common of land may convey his interest in a particular portion of the land ^described by specific metes and bounds, but the grantee takes subject to the co-tenant’s right of partition of the whole tract. The grantee’s title is good against his grantor and all persons except the co-tenant. The right of partition existing in the co-tenant may be exercised at any time, and may result in the loss to the grantee of the particular parcel conveyed to him. Until such partition the grantee is'entitled to the use and occupation as co-tenant in such parcel with the other owners.” To the same effect is Gates, v. Salmon, 35 Cal. 576.
In Soutter v. Porter, 27 Me. 405, it was held that the [239]*239“conveyance by a tenant in common of a portion of the common estate by metes and bounds will not necessarily be inoperative upon his own rights, or the rights of others. The law will give effect to such conveyance so far as it may do so consistently with the preservation of the entire rights of the co-tenant, and no further. If the estate so conveyed by metes and bounds, or any part of- it, shall upon partition of the premises be assigned to the right of the .grantee or his assigns, the conveyance embracing it may operate and convey the title from the grantor to the grantee. Snch a conveyance of a tenant-in common, however, cannot in any event operate contrary to the expressed declarations and intentions of ihe parties, to convey an estate in common instead of an estate in severalty.”
In Robinett v. Preston’s heirs, 2 Rob. 274, it was stated that at the trial of the issue joined in a writ of right after the demandants had introduced a grant to their ancestor embracing the land demanded, the tenant introduced an earlier grant of the land to two grantees, and. offered to give in evidence a deed from one of those grantees conveying by metes and bounds a particular part of the land to a person under whom he (the tenant) claimed, and also offered other evidence tending to prove that partition had been in fact made, though without deed, between the two grantees, the circuit court being of opinion that the conveyance by metes and bounds by one joint tenant- of a portion of the land held in common was void, refused to permit the same to go in evidence to the jury ; and a verdict and judgment were rendered for the demandants. Held : The circuit court erred ; and its judgment is therefore reversed, the verdict set aside, and the case remanded for a new trial, on' which the conveyance, if offered, is not to be rejected on the ground that it is void. Allen, Judge, said : “As between the joint tenants there may be good reason for holding that a conveyance by one of a specific parcel of the land should not affect his co-tenant. They are [240]*240seized per mi et per tout; and neither has a right at his election to c'onvey a particular portion so as to affect or prejudice his co-tenant.” He also approved the reasoning of the court in Varnum v. Abbot, 12 Mass, supra, in which the court after reviewing the cases in which it had been held that such a conveyance could have no legal effect to the prejudice of a co-tenant, proceeded to consider its effect as against the grantor, and determined that it is effectual against him. If upon a partition the share assigned to the co-tenant does not include the part-conveyed, the co-tenant has got all he had a right to, and the grantor cannot be permitted to denj^ his deed. So in the case of a release by the co-tenant to the alienee of his moiety in the part conveyed, the alienee would have a deed from each, and yet if the first conveyance was merely void, it could not help the second.” See also McKee v. Barley, 11 Gratt. 340.
In Cox et al. v. McMullin, 14 Gratt. 82, the court held, that “where two tenants in common of land having but an equitable title, one of them cannot appropriate to himself any specific portion of the common properly, or do any act whatever in derogation of the rights of the others to enjoy equally with himself the common property and every parcel thereof. Although a party holding in common with others can do nothing to impair or vary in the slightest degree the rights of his co-tenants, yet if he execute a deed for a specific portion of the common subject, and make a contract in regard to it, and upon partition such portion falls in severally to the party so making the deed or contract, he will be bound by his act.”
In Johnson v. Stevens, 7 Cush. 431, the court held, that a release to a tenant in common from his co-tenants of their interest in a specific part of the land held in common confirms a conveyance previously made by him of that part of the land. The deed therefore was not void, else it could not by the confirmation be made valid. The co-tenant could not by conveying a part of the land [241]*241held in common affect the rights' of another co-tenant; but he certainly could affect his own rights, and the deed would therefore bind him; and when his co-tenants confirmed it, the grantee could have no right to complain.
In Dorn v. Dunham, 24 Tex. 366, it was held, that “a tenant in common of an undivided interest in land can not prejudice the rights of his co-tenants by an agreement to convey a designated portion of the tract; and a selection made by the obligee under it will confer no title on him as against such co-tenants. The tender of a deed from such obligor to the obligee for a different part of the tract from that agreed to be conveyed, and which had been selected in pursuance of their agreement, is not a compliance with the contract; and the obligee may refuse to accept it. If under such an agreement the obligors were unable to make title by reason of the land falling to the share of another in a partition between the co-tenants, the remedy of the obligee would be by a suit for damages for the breach of the contract.” See Boggess v. Meredith supra.
From the foregoing authorities the following legal principles are deduced:
A co-tenant may convey at his pleasure his undivided interest in all the lands held in common without the knowledge or consent of his companions in interest. In this case the effect of the deed is to place the grantee in the deed in the same position that the grantor had previously occupied, and no possible injury could result to the other co-tenants in the tract. A deed from a co-tenant of a part of the land held in common, describing it by metes and and bounds, cannot in any way operate to the prejudice of the other tenants in common ; they have the right to have the land partitioned unaffected by such deed. But in partitiofi in such case a court of equity will allot the portion so conveyed by metes and bounds to the purchaser thereof, if it can be done without prejudice to the rights of the other co-tenants. Such deed will become operative and pass to the purchaser of [242]*242such lands by metes and bounds, if the other tenants in ' common before partition confirm and ratify it ; and after partition, if that portion is allotted to the purchaser; and in either case said deed will be binding on both the grantor and grantee. But if a tenant in common convey with covenant of general warranty a part of the common subject by metes and bounds, and upon partition afterwards made a material part of the land so conveyed is allotted to other tenants in common, so that the purchaser does not obtain the substantial inducement to his contract of purchaser, upon the prayer of such purchaser a court of equity will cancel and annul such deed and place the parties in statu quo.
The vendor of real estate is not responsible for any defects of title, unless he has bound himself by some covenant or warranty to protect the vendee, unless he has been guilty of some fraud or concealment. Commonwealth v. McClanachan’s ex’rs, 4 Rand. 482. But where he has bound himself to convey the land with covenant of general warranty, he is responsible for defect of title to any part of the land so sold; and a court of equity will not compel the payment of the whole of the purchase-money until the defect is removed, although there has been a conveyance of the land by the vendor. Roger v. Kane’s adm’r, 5 Leigh 606; Clark v. Hardgrove, 7 Gratt. 399; Renick v. Renick, 5 W. Va. 285. And where a contract has been executed in mutual mistake in a matter vt'hich is the cause and subject of the contract, no fraud being imputable to either party ; such mistake is good ground in equity for rescinding the agreement, even after it has been fully executed by conveyances by both parties. Glassell v. Thomas, 3 Leigh 113.
In the case here it is manifestly impossible for the vendor to make title to a very large portion of the land that Collins bought, and which was before the partition conveyed to him with covenant of general warranty. The evidence is clear and conclusive that he did not get [243]*243the substantial inducement to the contract; and it would be inequitable and unjust to require him to stand to his deed and pay the purchase-money, when he does not get the .laud he bought. He is asked to take three hundred acres of different and much less valuable land than that conveyed to him in satisfaction of his deed. The court has no right to make a contract for the parties ; nor to require one of the parties to take land and pay for that which he did not buy in lieu of that which he did purchase. But, says the counsel for the appellant, “Collins knew, when he purchased, that the tract of three thousand two hundred and ninety-two acres was undivided, and that in any partition that might be made, the adjustment of the boundaries of the respective interests, as they might be laid off to the parties interested, would be subject to the control of the court making it. This was the risk he must be understood to have taken, when he bought an undivided interest; and his purchase must be construed to mean, that he became tenant in common in the whole tract with the other co-tenants.” This would all be so perhaps, if the deed had contained no covenant of general warranty but for the warranty in the deed he would have taken the risk, but that risk was just what he fortified himself against by his general warranty. The vendors warranted to him certain specific land, and warranted it against the claims of “all persons whomsoever”; and-he was not therefore bound to take such lands as might be set off to him in the partition suit. If what he bought was allotted to him, he would he content, and would by law have been compelled to pay the purchase-money, because he would in that case have had no reason to complain ; but if not so allotted to him, he was fully protected by his warranty.
For the foregoing reasons the decree of the circuit court of Kanawha county rendered in this cause on the 11th day of January, 1878, is reversed and annulled ; and the said Stauntons must pay the appellant Worthington, [244]*244the party substantially prevailing as to them, the costs of his appeal ; and the said appellant Worthington, must pay to the appellee, R. H. Collins, his costs in this appeal expended ; and this Court proceeding to render such decree as the said circuit court ought to have rendered, the demurrer to said cross-bill of said J. G. Staunton is sustained, and the said cross-bill is dismissed at the costs of said Staunton ; and as between the said plaintiff and appellant, Worthington, and defendant, R. H. Collins, the deed from H. P. Longmore and wife, Henry Worthington and wife, J. H. Saulsbury and J. P. Hale, to said R. H. Collins for the land in the bill mentioned, bearing date the 19th day of April, 1859, and filed as exhibit “C” with the bill, is cancelled and annulled, as are also the notes and bonds in the bill mentioned, given for the purchase ; and this cause is now remanded to the circuit court of Kanawha county with instructions to place the said defendant, R. H. Collins, and his said grantors in said deed in statu quo, and to take such account or accounts as may be necessary for that purpose according to the rules and principles of courts of equity in cases of rescinding contracts, and further to proceed with said cause according to the principle settled in this opinion, and further according to the principles and rules governing courts of equity.
The Other «Judges Concurued.
Decree Reversed.