#### *McKee v. Barley.

July Term, 1854,

Lewisburg.

Coparceners—Sale *of*Portion of Property by One Parcener—Effect on Subsequent Grantee witii Notice.*—One of two coparceners contracts to sell a small part of a tract of land, professing to act for both, though without authority, and the other coparcener does not consent to the sale. Both coparceners afterwards convey the whole tract to a grantee having full notice of the agreement. The land sold is but a small part either in quantity or value ot one moiety of the tract. Held: That the grantee will be compelled to perform the agreement.

In the year 1836 John T. McKee and his sister, the wife of Andrew Bratton, of Bath county, owned jointly a tract of land in the county of Rockbridge, lying on Kerr’s creek. On this land there was a large spring, the stream from which entered into Kerr’s creek, making an acute angle with the creek, and this angle of land belonged to McKee and his sister, and constituted a part of the tract owned jointly by them.

Some years previous to the time stated, Andrew Walkup owned the land on Kerr’s creek immediately below McKee’s spring branch, and extending up to it, on which land he built a merchant mill and saw mill, which were propelled in part b3' water taken from the spring branch, and in part by water taken from Kerr’s creek below the mouth of the spring branch. The dam across the spring branch seems to have been little if anything, more than a log placed in and across the stream. This land with the mills thereon were purchased by Samuel Barley; and in 1836, for the purpose of better getting the waters of Kerr’s creek to his mill, he made a contract with John T. McKee, who acted for himself and Andrew Bratton and wife, though withotit their authority, by which McKee agreed to sell to Barley the triangle lying between Kerr’s creek *and the spring branch commencing at the month of the branch, and running up on the branch to a point above the dam in the branch, and running up on the creek to a large rock, the whole being less than an acre; and it was agreed that Barley might take the water out of the creek above the rock, and carry it across the land sold to him into his dam across the spring branch, and thus into his mill race.

This agreement was contained in a deed bearing date the 2d day of December 1836, purporting to be by John T. McKee and Andrew Bratton and wife, but which was only executed by McKee, by -which, in consideration of thirty dollars, they convey the piece of ground, with the privthege as aforesaid. This deed was attested by one witness, as to McKee’s execution of it; and he gave to Barley a receipt of the same date for fifteen dollars as one-half of the purchase money.

By deed bearing date the 20th of May 1839, John T. McKee and wife and Andrew Bratton and his wife conveyed to Samuel W. McKee, the son of John T., the tract of land owned by them joihtly on Kerr’s creek, embracing in the conveyance the triangle *148of land sold and conveyed by John T. McKee to Barley: But of the agreement with Barley, Samuel W. McKee had been informed at the time it was entered into. After this conveyance to Samuel W. McKee, differences arose between him and Barley as to the rights of the latter under his contract with John T. McKee. These differences referred to the questions how far above the rock on Kerr’s creek which was a corner of the triangle sold, Barley might take the water out of the creek and carry it through McKee’s land; and how high he was authorized to maintain his dam across the spring branch. These differences resulted in two actions of trespass brought by McKee against Barley in the Circuit court of Rockbridge, to recover damages *for injuries done, as he alleged, by Barley to his land and to his spring. Barley then filed his bill in the same court, setting out his agreement with John T. McKee, and exhibiting his deed as marked A, insisting that he 'had not transcended his rights under the agreement; asking for a specific performance of that agreement by Samuel W. McKee, who had received his conveyance with notice of it; that his rights under it might be ascertained and adjudicated ; and that the actions at law brought against him bjr McKee might be enjoined. To his bill he made John T. McKee, Samuel W. McKee and Bratton and wife parties, all of whom answered. Samuel W. McKee resisted the specific execution of the contract, on the ground that John T. McKee had no authority to act for Bratton and wife, and that they never assented to it, and because the terms of the agreement were uncertain. But his objection to the specific execution of the agreement arose principally from the extent of Barley’s claims under it, and the injury which he insisted he would sustain if these claims were sustained. On this last subject an immense mass of testimony was filed in the cause: But when the cause came on finally to be heard, the court declined to determine upon the true construction of the agreement, or upon the injuries of which Samuel W. McKee complained. But leaving these subjects to be settled in the actions at law, the injunction was dissolved, and a decree was made for a specific execution of the agreement, and that Samuel W. McKee should execute to Barley a deed in all respects similar to that executed by John T. McKee, except that it should be with special warranty. From this decree McKee applied to this court for an appeal, which was allowed.

Michie, for the appellant.

Stuart, for the appellee.

*

Tenants in Common—Conveyance of Specific Portion of Property by One Tenant—Effect upon Partition.— Although a party holding in common with others can do nothing to impair or vary in the slightest degree the rights of his cotenants, yet, if he execute a deed for a specific portion of the common subject, or make a contract in regard to it, and upon partition such portion is assigned to the parly so making the deed or contract (indeed, the court will so assign it if the cotenant is not prejudiced thereby), he will be bound by his act. The principal case was cited as authorizing this proposition in Boggess v. Meredith, 16 W. Va. 29, Worthington v. Staunton, 16 W. Va. 240. Cox v. McMullin. 14 Gratt. 82, 90, and *foot-note.*

Specific Performance.—The principal case, Evans v. Kingsberry, 2 Rand. 131, and Jackson v. Ligon, 3 Leigh 161. are cited in Creigh v. Boggs, 19 W. Va. 252, as authorizing the proposition that, if the purch aser can get substantially what he contracted for. the agreement will generally be enforced at the suit of the vendor. On this point, see also, *foot-note*to Griffin v. Cunningham, 19 Gratt. 574.

*ALLEN, P.

The only question presented for the consideration of the court by this appeal, is, whether the final decree directing the specific execution of the contract therein mentioned, by the appellant Samuel W. McKee, was correct. Other matters were put in issue by the pleadings, involving the construction of the contract and the privtheges it was intended to confer; some proceedings were had which looked to a decision of these questions; and nearly all the testimony in the record relates, to this branch of the controversy. When the case came on for final hearing, the court property declined expressing an opinion on any part of the case made by the pleadings, except the right of the appellee Barley to a decree against the said Samuel, for a specific execution of the contract, so as to invest Barley with the legal title to the lot of land and the water privtheges alleged to have been purchased by him from John T. McKee and Bratton and wife. All other questions of law and fact as to the effect of that legal title, the extent of the privtheges conferred by it, and whether they had been abused, were left to the determination of a court of law with the aid of a jury, in the actions then pending, or which might be thereafter instituted.

It appears from the record that John T. McKee and his sister Mary Jane, the wife of Andrew Bratton, were seized as coparceners of a tract of land on Kerr’s creek in Rockbridge county, containing two hundred and eighty-one acres. Bratton and wife resided in Bath county; John T. McKee seems to have resided on or near the land, and to have had it under his charge. From the answer of the appellant Samuel W. McKee, it appears that in the year 1835 he rented the land from his father, the said John, and Bratton and wife; that he took possession thereof in March 1835, and has remained in possession ever since; and that on the 20th of May 1839, his father and Bratton *and wife conveyed the land to him in fee: And he files a copy of the deed with his answer.

Whilst the appellant thus held possession as tenant, the appellee, as appears from the answer of said appellant, made an abortive effort to obtain the privthege from him to raise his dam, and presented to him a deed which he had prepared for him to execute; alleging that John T. McKee had given to the appellant his moietj’’, and he would become the purchaser from Bratton and wife of the other moiety; but the appellant refused to negotiate with him on several grounds: one being that he had no title to the land. The appellee then said he would see John T. McKee on the subject, and left for that purpose: And in the after part of the same day, John T. McKee informed the appellant that he had signed an agreement for the sale of the small triangle, according to the provisions of the deed or agreement from John T. McKee to the appellee, referred to in the bill and answer as exhibit A. The deed was prepared to be executed by John T. McKee and Bratton and wife, but was signed by the former only; and taken in connection with a receipt given by John T. McKee to Barley of the 2d of December 1836, of the same date with the deed, for fifteen dollars, in part of the purchase money of a lot of *149land and other privtheges bought of him and Bratton by the appellee, is evidence of a contract on the part of John T. McKee acting for himself and professing to act for Bratton and wife, to sell to Barley a small triangle between Kerr’s creek and a spring branch, containing, as appears by the sur*vey*made in this cause, 151.80 perches, with certain privtheges set forth in the deed; amongst the others, the privthege of turning the water out of the main channel of Kerr’s creek by means of a dam or otherwise, above a rock (the corner on Kerr’s creek), through a race to be cut through said lot.

*The authority of John T. McKee to act as the agent of Bratton and wife in this transaction, though averred in the bill, is denied in the answers, and is not proved. There is nothing, therefore, which would bind Bratton and wife to execute the contract. But it is clear as well from the deed of John T. McKee, which is valid as to him, though Bratton and wife did not execute it, and his receipt, as from the admissions in the answers of both the McKees, that the sale and purchase was not limited to John T. McKee’s undivided moiety, but embraced the whole subject described in the deed. The deed itself, signed by John T. McKee, describes the land intended to be conveyed by metes and bounds; the receipt is for a part of the purchase money of the lot and other privtheges sold to Barley; the answer of John T. McKee sets forth the negotiation as between himself alone and Barley, the execution of the deed A by him, and insists that Barley is entitled to nothing but what is provided for in the article: Thereby impliedly admitting that he is entitled by their contract to all the deed did profess to convey. This answer would not be evidence against the codefendants. But Samuel W. McKee in his answer, admits he was informed by his father on the day the contract was entered into, that he signed an agreement for the sale of this small triangle to Barley, and refers in his answer to the deed as showing the extent of Barley’s rights. In fact, so far from controverting the right of the appellee as acquired by the contract, the appellant Samuel, in another part of his answer, states that if he had limited himself to the privtheges granted thereby, be never would have complained. The lawless abuse of the privtheges alleged to have been conferred by the contract, is the principal ground upon which he objects to the appellee’s claim to relief. It is manifest that whether John T. McKee was or was not the authorized agent of Bratton and wife, he undertook *to sell and did sell to the appellee the whole subject described in the deed of the 2d of December 1836; and he, and those claiming under' him, with full notice of his contract, are hound to comply with it, if it can be done without injury to the rights of the coparcener. The answer of the appellant shows he was fully apprised of the negotiation and sale, and the terms thereof: and the evidence proves that the appellee took possession of the lot of land purchased by him, and made use of it in the mode contemplated when he purchased by opening a race through it.

It was said in Robinett v. Preston, 2 Rob. R. 277, that although a conveyance by one joint tenant of a part of the hind might have no legal effect to the prejudice of the cotenant, yet it would be effectual to pass the interest of the grantor in the tract. And if upon partition, the share assigned of the cotenant did not include the part conveyed, the cotenant would get all lie was entitled to, and the grantor could not deny his deed. If upon a partition that part of the land described in this deed or affected by the water privtheges, had been assigned to John T. McKee, he would have been in a condition to have executed his contract, if he would not, in that even!., have been estopped by his deed from disturbing his vendee; and his son claiming under his subsequent conveyance with full notice, can occupy no higher ground.

A court of equity, in making partition, would have respected the rights acquired by a fair purchaser, provided no injury was done thereby to the coparcener. In this case the interest sold was small in extent and of little value. The triangle containing less than an acre, and the whole interest conveyed was valued by the parties at thirty dollars. The coparcener could have had his full share allotted in the residue of the tract. As the conveyance of both the joint owners to the appellant Samuel has invested him with the legal * title to the entire tract, he is now in a condition to perfect the title of the appellee, according to the terms of the contract, as evidenced by the deed of the 2d of December 1836, from John T. McKee, referred to as exhibit A. This is all the decree requires him to do, and I think it should be affirmed.

The other judges concurred in the opinion of Allen, J.

Decree affirmed.