#### *Smith vs. Mahan &c.*

$JECTB£ERT.

Case 40.

Appeal from the Bourbon Circuit; George Shankon, Judge

*Conveyances. Coparceners. Warranty. Estoppel. Co-tenants. Demises.*

Verdict and judgment in ejectment for plaintiff, and appeal by defendant.

May 2.

Judge Owsley

delivered the Opinion of (he Court.

This writ of error is prosecuted by Smith to reverse a judgment rendered against him in an action of ejectment in which he was defendant.

The trial was had on the general issue, and the verdict upon which the judgment was rendered, was found by the jury in conformity to the instructions of the court.

*229statement ¿f the facts,

Where one coparcener *230executes a deed of conveyance for the whole land, his warranty, tho’ against only those claiming under him, will es-top him from aserting title, against his alienen or vendee, to an interest which after-wards descends on him from his coparceners.

*22980 much of the proceedings as are necessary to' un understanding of the question presented for the determination of this court may be discovered a brief summary of facts.

Many years ago a graiit issued from the commonwealth to John Mahan for a tract of land, part of which is now the subject of contest, and upon his death, the title to the land descended upon his children and heirs, Wm. Mahan, Thomas Mahan, Raney Mahan, Agnes M. Mahan, Elizabeth Clarkson and John R. Mahan. The land was afterwards sold, and deeds of conveyance executed by Wm. Mahan, Agnes Mahan, Raney Mahan, and Charles Clarkson the husband of Elizabeth Clarkson, to others, under whom Smith, the defendant in the court below, and plaintiff in error, holds. In each of these deeds there is a warranty of the title by the respective vendors against themselves and all persons claiming by, through, or under them. Subsequent to the date of these deeds, John R. Mahan, one of the children of the grantees from the commonwealth, departed ..this life, and being without children, the title which he derived by inheritance from his father, descended upon his brothers and sisters in coparcenary, of whom Wm. Mahan, Raney Mahan, and Elizabeth Clarkson are part. To recover the land to which they became thus entitled by descent from their brother, Wm. Mahan, Raney Mahan, and Elizabeth Clarkson, brought thisejectmeht against Smith, who is in possession thereof. The declaration contains several demises; but no question was made in the court below applicable to any but the first, and that is a joint one in the names of Wm. Mahan, Raney Mahan, and Elizabeth Clarkson.

■After the evidence was closed, the court instructed the jury that the lessors in the first demise laid in the declaration, had shewn title to one fifth of the land in contest, and that a verdict for that much should be found against the defendant in that court.

The question is, as to the correctness of the instruction.

. It is perfectly clear that the instruction cannot be maintained upon the title which was derived by two *230of the lessors from their deceased brother. Upon the death of that brother, the title which he then possessed no doubt descended by operation of law to the three lessors in coparcenary with their other brothers and sisters; and if no act had been previously done by any of them to prevent their recovery, the interest so derived by them from their brother, might have been recovered in the present action. Blit it appears that two of them, William and Raney Mahan, had, before the death of their brother, executed to persons under whom Smith claims, deeds of conveyance, with warranty against them and others claiming under them, for the same tract of land to which their brother held title in coparcenary with them, and to recover which this action is brought; so that by force of their warranty they must necessarily be estopped *to*assert against their vendees or others claiming under them, any title thereafter derived by descent or otherwise. Such, it is true, would not have been the effect of the warranty, if, as was contended in argument, *the*deeds were construed to import a conveyance of nothing more than the undivided coparcenary interest to which at the time, the vendors were entitled; but according to no rule of interpretation can the deeds, or either of them, be so construed. The language used in each deed plainly imports a conveyance of the whole tract, and neither deed contains any expression calculated to limit the operation of the warranty to a part of the title only. Being- therefore concluded by their warranty, neither William nor Raney Mahan can have shewed any title to any part of the land in contest.

—Otherwise, had the conveyance been of only the grantors interest.

■ In an action on a joint demise, title must be proved in all the lessors, or nothing can be recovered.

But with respect to the other lessor, there is no such estoppel. By any thing contained in *the record,*she is not proved to have made and executed in the form required by law any conveyance by which she can be concluded from asserting the title derived by descent from her brother; and if no other objection to her recovery existed, the court might' with correctness have instructed the jury to find against Smith to the extent of her interest in the land. But she has united in a joint demise with the other lessors, and the rule is well settled that under such a de*231nuse there can be no recovery, though one be proved to have title, if the others have none.

Without therefore noticing any other point, it is perfectly clear that the court erred in the instruction to the jury, and for that cause the judgment must be reversed with costs, the cause remanded to the court below, and further proceedings there had not inconsistent with this opinion.