#### William B. Dorn *vs.*William Beasley and Wife.

Where plaintiff in trespass to try title has a verdict for “one undivided fourth part of the land,” defendant may sustain a bill against him for partition of ' the land.

A decree in partition -does not bind parties not before the Court.

BEFORE WARDLAW, CH., AT ABBEYILLE, JUNE, 1854.

WARDLAW, Ch. The points undetermined in this case, upon which it was remanded to the Circuit Court for hearing, relate to the partition which the plaintiff claims by his bill.

The bill alleges, that although plaintiff supposed himself to be exclusively entitled by grant from the State and adverse possession, to the Teulon land of- one hundred and sixty-three acres, the effect of the recovery, in the suit at law against him by the present defendants, of one undivided-fourth part of said land, is to give him title as against defendants to the remaining three-fourths, and to make him tenant in common with them of the whole tract; and that he has so treated the rights of the parties since the verdict. The answer insists that-defendants are not tenants in common with plaintiff, and have no joint interest with him, but that they are in fact tenants in common of the whole land with the heirs at law of Christiana Teulon, who died seized of the land. The amended answer of defendants alleges that Christiana Teulon left four daughters as her heirs at law, viz.: Mary, on^ of the defendants ; Rebecca, who has been dead for many years, leaving a son, William T. Still-man ; Elizabeth Brown, who left the State about thirty years ago, and died' soon after, perhaps leaving a son, of whom nothing certain is known; and Anna, of whom nothing has been heard for sixteen years, and of whom there was a previous rumor that she had gone through the ceremony of marriage *85with one Sheppard, who was said to have a wife' then living. The defendants do not claim title to the whole land in themselves adversely to the plaintiff, but they do claim,'.by descent, shares in the portions of the sisters of the wife of defendant, where such sisters and any issue of .them are presumed to be dead.

No proof was offered before me of the title of Christiana Teulon to the land in question, probably-because it was supposed such proof was not proper in this tribunal. Where on a bill for partition, adverse claim is pleaded in defence, the bill is sometimes dismissed, *{Martin*vs. *Smith,*Harp. Eq. 106,) but the more usual and better course is, to retain the bill and direct an issue to be tried by a jury. But here the defendants do not claim for themselves more than one undivided fourth of the land, unless they may be entitled to some accretion to their share by the death of the wife’s sisters and all issue of them. No proof was offered concerning the descendants of Christiana T,eulon, except that she left three daughters, Mary,'-Rebecca, and Anna; and that William M. Stillman, son of Rebecca, had commenced an action of trespass to try titles for this land against the present plaintiff. There was no attempt to show by evidence, by what title the defendants recovered one-fourth of the. land; ■ and I supposed that parol testimony as to the facts which formed the basis of the verdict would be incompetent. *{Henderson*vs. *Kenner,*1 Rich. 478; 2 Smith’s L. C. 441.) Still the defendants themselves are committed by the statement of their title in the answer; and upon that statement, I am of opinion that they are estopped from claiming more than one-fourth against defendant. If they be now entitled to more than one-fourth, they were equally so entitled when they obtained their verdict in 1852, and when they commenced their action in 1849, for the presumption of the death of two of the sisters of Mrs. Beasley without issue, was complete at the earliest" period mentioned, and the neglect of Beasley and wife to prove the facts on the trial at law upon *86which the presumption rests, gives them no claim to renew the litigation. *{Davis*vs. *Murphey,*2 Rich. 560.) It was decided in *Oaston*vs. *Perry, 1*Bail. 533, that a recovery by a plaintiff in trespass to try titles is conclusive between the parties as to all titles which the defendant had at the time of trial; and as estoppels are reciprocal, the plaintiff suing for the whole, and recovering a part only, is equally concluded as to all his existing titles. In *Dyson*vs. *Leelc,*5 Strob. 143, the Court says: “ If the verdict finds for the plaintiff a part of his claim, the defendant is concluded to that extent and the plaintiff is concluded as to the remainder; and the judgment for the plaintiff for the part recovered, is a judgment for the defendant, in other words, a judgment against the plaintiff for the part not *recovered;*so that to a second suit founded on the same cause of action, the defendant may plead the former recovery in bar.” This doctrine is reaffirmed in *Parmer*vs. *Miller,*5 Rich. 483. It may be said that as a defendant in trespass to try titles may defeat a plaintiff in whole or in part, by showing a paramount title in a third person; the title of the defendant in such suit is not directly in issue. This may be true, but it can have no effect in limiting the estoppel upon the plaintiff, between the parties, as to the extent of his title ; however it may tend to rebut the conclusion that the parties are tenants in common by joint title.

In the action of ejectment the formal issue is as to the right of possession only; and our action of trespass to try titles, pursued in the names of the actual claimants and possessors, includes merely the substance of the action of ejectment purged of fictions and unending litigation, with the addition of the action of trespass for mesne profits. The right of possession, not the title, is the git of the form of action prescribed in this State. As title, however, is in fact tried in the contest about the right of possession, I suppose that where a plaintiff in trespass to try titles suing for an entire tract, recovers an undivided .portion only, the presumption in the absence of contrary proof *87and claim, would be, that the defendant has title as well as possession joint with the plaintiff. In the present case, however, both parties agree that their title is not joint, one claiming by grant from the State and adverse possession, and the other by descent from Christiana Teulon. Still the verdict certainly shows that as between themselves the parties are entitled to a common possession. The defendant in the suit at law by the verdict was adjudged to have right of possession to three-fourths, and the plaintiff to one-fourth; and as their right of possession was not divided, it must be in common. Such was the conclusion of the Court of dernier resort in this very case. It might be that Dorn’s possession was in right of another, but the ordinary presumption is, that it was in his own right. It is conceded that he has a grant from the State covering the land in question, and this is sufficient *prima facie*proof of his seisin of three undivided fourths to entitle him to partition. Whether some descendants of C. Teulon not before the Court may not have a better title than the plaintiff, it is not important to inquire. No party in that interest has intervened in this controversy by pleading or proof, and none such will be bound by the decree. Courts have sufficient employment in protecting the interests of the parties before them, without looking to the possible interests of those not represented in the litigation, nor bound by the judgments. If a party by injudicious attempts to defeat his adversary, commit himself injuriously to some third person unrepresented, it is his fault, and not that of the tribunal. Perhaps Beasley and wife, by their course of pleading, may have yielded any right to claim this land by possession adversely from the other distributees of C. Teulon; but if these distributees prove their title,, I suppose that they will also be protected against Dorn’s possession by the common possession of Beasley and wife. A judgment of a Court concludes only the rights of the parties represented in the suit in which the judgment is rendered. For example, any partition decreed by the Court of Equity may be disturbed or annulled on regular *88application of third'persons proving paramount title to some or all of the parties to partition. ■ . ■

If, then, the effect of the verdict at law, be to establish a common right of possession in the plaintiff and defendants, and if Dorn’s grant sufficiently exhibit his seisin 'of the land — and I adopt the affirmative’in both instances — it is entirely immaterial whether the parties claim by’joint'title or not. Tenants in common are such as hold by several and distinct titles, but by unity of possession; because none knoweth his own severalty, and therefore they all occupy promiscuously. (Litt. 292.) In this State, and generally in the United States, this tenancy in common may arise by descent; but it may happen when there is unity of possession merely, and an entire disunion of interest, of title, and of time. Of two tenants in common of lands, one may hold his part in fee simple, the other in tail or for life; so that there is no necessary unity of interest; one may hold by descent, the other by purchase ; or one by purchase from A., the other by purchase from B.; so that there is no unity of title: one’s estate may have been vested fifty years, the others yesterday: so that there is no unity of time. The only unity is of possession. (2 Bl. Com. 191; 2 Cruise, 525).

The jurisdiction of the Court of Equity to effect partition between tenants in common or other tenants having joint interests, is well settled and eminently salutary. Common possession so frequently leads to strife, that every legitimate facility should be afforded to severance. It constitutes no objection in equity to a partition, that it may not finally conclude the interests of all persons; as where partition is sought only by or against a tenant for life, or where there are contingent interests to vest in persons not *in esse. (CfasJcell*vs. *Q-ashell,*6 Sim. 643.). Eor the Court will still proceed to make partition between the parties before the Court, who possesss competent present interests, as tenants for life or for years, although it may not be binding on third persons not virtually represented. (Stor. Eq. 656.) In *Steedmcm*vs. Wee/cs, 2 *89Strob. Eq. 145, the Court granted partition of growing trees suitable for sawing, between parties having a common interest in these trees, although one of the parties was exclusively entitled to the soil. I think the plaintiff as against defendants is entitled to partition.

It is ordered and decreed, that a writ be issued, directed to five commissioners, to be appointed by the Commissioner of the Court on the nomination of the parties, to make partition of the land described in the pleadings, so as to allot three-fourths to the plaintiff and one-fourth to the defendants in right of the wife.

It is also ordered, that the injunction heretofore granted be made perpetual.

The defendants appealed upon the grounds:

1. That there is not such community of interest between complainant and defendants as will authorize a partition.

2. That upon a total denial by defendants of a right to partition in complainant, together with a statement of the parties who are entitled to partition, this Court will not order partition until the rights of the parties are settled by an issue.

3. Because, under the circumstances, a partition would be injust to the defendants who are in no default, and that a partition should not have been ordered.

Thomson, for defendant.

*McG-owen,*contra.

The opinion of the Court was delivered by

DaRGAN, Oh.

William Beasley and wife brought an action of trespass to try the title of a certain tract of land against *90the plaintiff in this case. At October Term, 1852, the action at law was tried, and the plaintiff in said action had a verdict for “ an undivided fourth part of the land” described in the pleadings.

Mary Beasley was one of the heirs at law of Christiana Teulon, and there were three others. It was upon this title, that the action at law prevailed. Judgment was entered up upon the verdict in conformity therewith, and a writ of *habere facias possessionem,*in form following the verdict and judgment, was issued; under the authority of which, and by direction of the plaintiffs in that action, the sheriff was about to eject William B. Dorn, and put Beasley and wife in possession of the whole tract.

Whereupon, William B. Dorn filed this bill for an injunction to stay the execution of the writ of *hab. fac. poss.,*and also for a partition of the premises in question. He alleges in his bill, that he has been in possession of the premises for fourteen years; regarding and using it as his own property. He says, that the effect of the verdict and judgment is, to make William Beasley and wife tenants in common with him, — he interested to the extent of three-fourths, and they to the extent of one-fourth. The prayer of the bill is, that the land by a decree of the Court may be divided between him, and the said Beasley and wife in that proportion.

The complainant Dorn, obtained from one of the Chancellors at Chambers, an order for an injunction to restrain the execution of the writ of *háb. fac. poss.*until the trial of the cause. The case came on for trial at June Term of the Court of Equity, for Abbeville District, 1858. The presiding Chancellor, on the authority of the case of *Dupont*vs. *Ervin, 2*Brev. 400, and in conformity to what he considered to have been the practice established by the decision in that case, dismissed the bill.

From this decree, an appeal was taken, and heard by this Court at May Term, 1854. At this hearing, besides the *91various grounds of appeal on the part of the complainant Dorn, which were discussed, the defendants, Beasley and wife, brought into question the jurisdiction of the Court. After sustaining the jurisdiction of the Court, this Court in its decree ordered as follows : “ In relation to the operation of the verdict at law, the proper form of the writ of *hah. fac. poss.,*and the' mode in which it should be executed as between the parties to the action at law, this Court prefers to take the advice and judgment of the Law Judges, — these latter questions relating to doctrine and practice exclusively legal.”

*“*It is therefore ordered, that this case be set down upon the docket of the Court of Errors for the argument of the questions just mentioned; and that a message be sent to the Law Court of Appeals,” &c.

The case was heard by the Court of Errors at the same term on the questions submitted to it by this Court in the order above recited. On the 15th May, (1854,) the opinion of the Court of Errors was delivered, in which three of the Chancellors, and five of the Law Judges concurred.

That Court was of the opinion, that in this case the proper form of the writ of *hah. fac. poss.*had been adopted; namely, that the sheriff should be required to cause the plaintiff, (in the action at law,) “ to have possession of the one undivided fourth part of the premises,” &e. As to the mode of executing the writ, the Court of Errors through its organ, says: “ Upon the second question referred to it, this Court is of opinion, that the proper mode of executing the writ of *hah. fac. poss.,*is for the sheriff to cause the said plaintiffs to have possession of one undivided fourth part of the tract of land, and appurtenances, described in said writ, and to leave the defendant in possession of the remaining three-fourths undivided.”

This judgment of the Court of Errors having been certified to the Equity Court of Appeals, that Court, on the 15th May, made a decree, setting aside the Circuit decree of June Term, 1858, and remanded the case “to the Circuit Court for a *92bearing upon the points yet to be determined.” The case came on for another hearing at the regular Term for Abbe-ville District, in June, 1854, when the decree was delivered, from which this appeal has been taken. By this decree, the Chancellor ordered a writ to issue, to be directed to five commissioners, “ to make partition of the land described in the pleadings, so as to allot three-fourths to the plaintiff, and one-fourth to the defendants in right of the wife.” The grounds of appeal in various forms, deny the right of the plaintiff to a partition.

It is difficult to take any other view of this question, than that adopted by sthe Chancellor who tried the cause on the Circuit. The Court of Errors having declared, that the proper mode of executing the writ of *hob. fac. poss.,*“ is for the sheriff to cause the plaintiffs to have the possession of the undivided fourth part of the land, and to leave the defendant in the possession of the remaining three-fourths undivided,” the unavoidable conclusion is, that Dorn, (the defendant in the action at law,) is in possession as to three-fourths, by some right or title valid as against Beasley and wife, and that he is a tenant in common with the latter. I take it as undeniable law, that all tenants in common who are *sui*juris, and where there is no restriction as to the time when severance is to take place, are entitled to partition. The Stat. 32, Henry VIII., made of force in this State, (2 Stat. 474,) provides, that tenants for life, or years, seized and possessed in common with others who have estates of inheritance in the same lands, shall be compel-lable to make severance and partition by writ of partition suable out of the Court of dhancery. The Act of 1799, (7 Stat. 784,) declares that writs of partition shall be demand-able as of common right. In *Steedman*vs. *Weeks,*2 Strob. Eq. 145, this Court decided, that timber trees growing on the defendant’s land, and to a moiety of which trees the plaintiff was entitled, were subject to partition, and ordered a writ of partition to issue to effect a division thereof between the plain*93tiff and defendant. *Parker*vs. *Gerard,*Ambler, 236. In *Warner*vs. *Baynes,*Ambler, 589. The Court held that certain water privileges, consisting of a spout and springs, used for the purpose of a bath, to which the plaintiff and defendant were entitled in common, should be divided, and ordered a writ to issue.

Thus it would seem, that partition is favored of the law. There must of necessity exist joint and common interests and estates in both real and personal property. But wherever partition is practicable, and there is no impediment, the Court will afford facilities for effecting it, whatever may be the rights or estates of the parties, and the proportions in which they are entitled. The compulsory possession of a common estate by parties who are hostile, or who do not harmonize, or whose objects and interests are diverse, is like the enforced continuance of the conjugal relations, productive of much mischief and evil. It suspends all improvements, for neither party can safely improve under such circumstances, and thus the prosperity of the community is affected ; it leads to endless contests and litigation, by which the peace of society must be disturbed, and the Courts must be harassed. ' To sever the common estate when it is desired, is to remove every cause of contention, and leaves each party in the exclusive and peaceable possession and enjoyment of his own share, to do with it as he pleases. These are some of the views which induce courts of justice to lend a ready hearing to applications for partition.

In the case before the Court, Beasley and wife are unquestionably entitled by th!e verdict of a jury, to one undivided fourth of the land in question; while Dorn, by the judgment of the Court of Errors in this case, has been adjudged to be entitled to the undisturbed possession of three undivided fourths. Are these hostile parties, who have been waging a protracted legal warfare against each other, to be yQked in the common possession of this property, by ties which cannot be severed ? How long is this state of things to endure ? What is the *94relief? Who has suggested a remedy other than that which may be afforded by a partition ?

It is needless to say, that other persons not before the Court, and who may have a paramount title, cannot be prejudiced by any judgment in these proceedings. But as against Beasley and wife, by the judgment of the Court of Errors, Dorn must be presumed to have a title to three-fourths. His possession is *primé facie*sufficient to raise this presumption. There is no proof as to his title but his long continued possession. But in the absence of all proof this is sufficient, and the possessor must be considered the true owner. Dorn must be taken as in possession by a title; and that title must be regarded good and sufficient until the contrary is shown. But Beasley and wife, by the verdict of a jury, are entitled as against Dorn to an undivided fourth part. Predicating my judgment upon the opinion of the Court of Errors, (from which I dissented,) I can see no obstacle to a partition, and am constrained to the conclusion that a writ of partition was properly awarded by the Circuit Court.

It is ordered and decreed, that the Circuit decree be affirmed, and the appeal be dismissed.

DüNKIN and Ward law, CC., concurred.

*Decree*affirmed.