
    *Cox & als. v. McMullin.
    July Term. 1857,
    Lewisburg.
    (Absent Deis. J.)
    1. Tenants in Common — ‘Equitable Title --Appropriation of Specific Portion. — There are two tenants in common of land haying- but an equitable title. One of them cannot appropriate to himself any specific portion thereof, or do any other act whatever in derogation of the right of the other to enjoy equally with himself the common property and every parcel of it.
    2. Same — Legal Title Held by One Joint Owner- Conveyance by Him to Stranger — Eííect. —The legal title to the land held in common being conveyed to one of the joint owners, he reciting that he owns the whole, conveys one-half of it to a third person, and purports to convey the upper moiety. But it will be held that the deed passed only an equal undivided moiety of the common subject: and that the other joint owner and the grantee held in common the whole subject, and every part thereof.
    3. Sanie^ - Conveyance of Specific Portion by One Tenant --Effect upon Partition.  — Although a party holding in common with others, can do nothing to impair or vary in the slightest decree the rights of his cotenants; yet if he execute a deed for a specific portion of the common subject, or make a contract ire regard to it; and upon partition such portion falls in severalty to the party so making the deed or contract, he will be bound by his act.
    4. Partition — How Made — Under Statute.  — in the partition of real estate, each part owner is entitled to have in severalty a part equal to his interest in the whole subject, if this is practicable, with a due regard to the interests of all concerned. But if such partition cannot be made without im-paring the portions of some others, the property may be divided into shares of unequal values, and the inequality may be corrected by a charge of money on the more valuable in favor of the less valuable portion, or by other means recognized in the law of partition. Code, ch. 124, § 2. p. 526.
    5. Same — Allotment — Assignment. ,‘ — The general rule of partition requires an allotment of the several parcels to the part owners: yet it may benefit both classes of owners to assign the parcels; or it may benefit one class without injury to the other, to assign rather than to allot. And in either ca.se, the commissioners may avoid the risk oí an unfortunate allotment, by resorting to an assignment.
    *This was a bill in the Circuit court of Kanawha county, filed by William A. McMullin against Charles A. Cox and others, for the partition of a tract of eighty acres of land bounded on the Kanawha river, and which constituted what was. called a salt property. The plaintiff and James M. Daidley and two infant children of Grant, owned one moiety of the property, and Charles A. Cox and his brothers and sisters, children of William A. Cox deceased, owned the other moiety. The case, as made out by the pleadings and evidence, is substantially as follows:
    In 1815 a patent issued to John Wilson for two hundred acres of land bounded on the Kanawha river. On the tenth May 1816 Wilson conveyed to James E}. Harris one-fifth part in quantity of this tract, which was to be laid off at the upper end of the survey: This land was afterwards conveyed to John J. Cabell and Walter Trimble, and they took possession thereof. On the 2d of January 1819 John Wilson executed two deeds, by one of which he conveyed to Joseph Lovell one undivided fourth part of the remaining- one hundred and sixty acres; and by the other he conveyed a like undivided fourth part to Alexander Grant. The land conveyed to Joseph Lovell came by intermediate conveyances to Frederick Brooks; and he held the lower part of the tract on the river, whereon are salt wells, &c. The part conveyed to Alexander Grant he conveyed to James Bream; and he dy-. ing, it was conveyed by Mrs. Bream to Mrs. Betty W. Lovell for life, with remainder to her children. The part held by Bream, and after him by the Lovells, lay on the river next above that held by Brooks.
    Although the patent for this land was issued to John Wilson, Andi'ew Donnally seems to have' had some equitable claim to it; and he seems to have been in possession of the eighty acres not conveyed away by Wilson, prior to 1821. On the 16th of August of that *year he entered into a covenant with James Wilson, by which he bound himself to Wilson that he would proceed to bore for salt water on this eighty acres of land, owned as he says, by the said Donnally, lying on the Kanavyha river between the furnaces of Cabell and Trimble and those of Lovell. And if the said Donnally shall obtain good salt water for one furnace of the usual size, he shall proceed to erect one good furnace, &c. And •then the said James Wilson is to be entitled and Donnally covenants to convey to him, one equal undivided moiety of the said eighty acres of land; so that the said Don-nally and Wilson shall be joint and equal owners and proprietors of the said eightj' acres, as tenants in common. And the said Donnally covenants that he has full right, lawful power and authority to convey the said land, and that his title thereto is full, complete and indefeasible, and that he will convey to the said Wilson a moiety of the said land as aforesaid, clear of all incum-brances ; and will warrant the same to the said Wilson and his heirs against the claims of all persons whatsoever. Wilson then covenants to convey to Donnally certain lands, and to build certain machinery for the manufacture of salt; and the parties then declare, that the salt well, furnace or furnaces, and the lands therein before covenanted to be bored, constructed or conveyed, are to be held, used, enjoyed and worked, at the joint expense of the said Donnally and Wilson, to be a joint and equal property between them; they equally sustaining the losses and receiving the rents and profits thereon. In January 1829 James Wilson assigned his interest in this agreement to Peter Grant.
    In August 1822 an article of agreement was entered into between Donnally, James Wilson, Bream, Lovell and Ruffner, which recited that they were the joint owners of a tract of one hundred and sixty acres of land, in the following proportions, viz: Donnally and *Wilson one-half, James Bream one-fourth, and Lovell and Ruffner one-fourth ; that upon said land coal had been discovered near the furnaces; that the front or bottom land upon the river had been divided; and for the purpose of settling their rights to the hill land and coal, it is agreed, that Donnally shall be at liberty to take coal for two furnaces, Wilson for one* furnance; Bream for two furnaces; Lovell for one furnace, and Ruffner for one, and no more. That the parties may take coal to burn in their own families, and also any small quantity which they may find it convenient to haul to town or in the neighborhood, but not for the purpose of making salt. This arrangement was to be taken for a division of the hill land, which from its situation was incapable of a convenient division by boundaries. In April 1844 William R. Cox, who had purchased out John Ruffner’s interest, covenanted to abide by the terms of the foregoing agreement.
    On the 1st of February 1830 John Wilson conveyed to Donnally the eighty acres of land before mentioned ; and on the next day Donnally conveyed one moietj’- thereof and of a salt well thereon, to John J. Cabell. The deed recited the fact that Donnally owned eighty acres of the land patented to John Wilson, on which tract there was a salt well, one-half of which eighty acres and of the salt well it was his purpose to convey to Cabell; and then proceeded to grant, bargain and sell to Cabell the said forty acres of land above described, being one-half of the said eighty acres; which said forty acres so conveyed, with half the salt well thereon, lies next below and adjoining another forty acres owned and occupied by the said John J. Cabell and Walter Trimble. And he conveys to Cabell, subject to the agreement aforesaid, in relation to the coal on the two hundred acre tract.
    
      In July 1832 John J. Cabell conveyed to James Hewitt, who had married a daughter of Peter Grant, all his interest in and title to (it being one equal half thereof) a certain salt gum or well on the land owned equally by said Cabell and the heirs of Peter Grant, with every right and privilege necessary to the full and complete enjoyment thereof. And in October 1833 Andrew Donnally, by deed reciting his agreement with James Wilson, the assignment of his interest in that agreement by Wilson to Peter Grant, and the death of Grant, conveyed to the children of Peter Grant, one of whom was Mrs. Hewitt, the undivided moiety of the said eightj’’ acres of land. And about the year 1845 seven of these children conveyed their interest in said tract of land to the plaintiff, William A. McMullin, who afterwards conveyed a moietj- of his interest to James M. Laidley.
    In October 1833 John J. Cabell'conveyed to William R. Cox and Samuel Hannah all his right, title and interest in and to forty acres of land, with a salt well thereon, adjoining the lands owned and occupied by Walter Trimble, it being' the land conveyed to him by Andrew Donnally. The said land and the salt well thereon to be held subject to the agreement with Bovell, Bream and others. And Cabell covenanted to complete the boring of a well then in progress, or at least go to four hundred feet if the requisite quantity of salt water should not be sooner found. Hannah afterwards sold his interest in this property to the defendant Charles A. Cox; and William E. Cox died, having bequeathed his interest to his children, of whom Charles A. Cox was one.
    It appears from the evidence that the eighty acres embraced in the agreement between Donnally and James Wilson, fronted about sixty-eight poles on the Kanawha river, and that the land between the river and the bluff was a narrow strip through which the ^public road ran ; and there was little room in this space which was not occupied either by McMullin and Baidley or the Coxes. It appeared further, from the report of the surveyor made in the cause, that Cox occupied the part of the lot next to Trimble, and McMullin occupied the part next to Bovell: but McMullin obtained the salt water he used from the well bored by Don-nally under his agreement with James Wilson, which is on the upper part of the tract; and Cox procured the water used by him, from two wells on the lower half of the tract, one of which was bored by Cabell, and deepened by Cox, and the other was bored by Cox. The land above the bluff seems to have been principally valuable for coal.
    In the progress of the cause commissioners were appointed to divide the land, between the river and bluff, between Mc-Mullin and Baidley on the one part, and Charles A. Cox and the devisees of his father on the other; and to divide the surface of the hill land between these and also Brooks and the Bovells. These commissioners made a report, by which it appeared that they had divided the land between the river and the bluff into two equal parts as to quantity; and they had assigned the lower part containing the wells bored by Cabell and Cox, to McMullin and Baidley, and had assigned the upper part to Cox, reserving to McMullin and Baidley all the right, title and interest they might have in and to the salt well on that moiety: and they made no allowance to Cox for the wells which had been bored by Cabell under whom he claimed, or by himself, nor for the buildings he had put upon the land assigned to McMullin and Baidley. The hill land was divided into lots, and assigned by the commissioners to the different parties; and as to that there was no complaint; but Cox excepted to the report of the division of the land between the river and the bluff, on the ground, 1st. That it made no division of the salt *wells, except to give the entire w’ell on the part allotted to Cox and the heirs of Wm. E. Cox, to the other party. 2d. That it gave the lower half of the front on the river to McMullin and Baidley, with its two salt wells, engines and fixtures, the wells having been bored by Cabell and Cox, at their own expense. 3d. Because it assigns to McMullin and Baidley the water cistern built by Cox, at his own expense.
    When the cause came on to be heard, the court overruled the exceptions, and confirmed the report; and made a decree directing that Cox should surrender to the complainant and Baidley the moiety of the lot assigned to them, with the tenements and two salt wells thereon; and that complainant and Baidley should surrender the other moiety to Cox, except the salt well, and sufficient space for all necessary fixtures to work the same, and a right of way thereto and therefrom, and for pipes and conduits to conduct the salt water therefrom; but they were to surrender to the Coxes the use of one-half of said salt well, to be used and enjoyed by them until the further order of the court; the question as to the right of the Coxes to one moiety of the well being reserved for future consideration.
    And on the motion of the Coxes, it was ordered that a commissioner of the court should take an account of rents and profits and of permanent improvements put upon the lot assigned to McMullin and Baidley by the Coxes, and those under whom they claim; and also an account of the rents and profits of the salt well on the lot assigned to them. And accounts were also directed at the instance of the plaintiff, of the rents and profits of the lot assigned to him and Baidley, so far as the same was in the possession of the defendants, or those under whom they claim, and also an account of the value of the salt well on the lot assigned to the defendants, and of the buildings and other permanent improvements thereon.
    The defendants afterwards filed a petition for a review of the decree, which was allowed; and when it came on to be heard, the court held, that the defendants were entitled to one moiety of the salt well on the lot assigned to them; that it was error to decree the whole moiety to Mc-Mullin and Baidley, they being entitled to but six-ninths; and that it was also error to decree the surrender of possession of the property by the defendants before the account of rents and profits and improvements, without requiring good and adequate security to be given by the complainant for any sum that might be due the defendants upon such settlement. And correcting the decree in these respects, and also in some matters of form, the court made a decree similar in all other respects to that which had been made. And from this decree Charles A. Cox and the devisees of William R. Cox applied to this court for an appeal, which was allowed.
    B. H. Smith, for the appellants.
    Try, for the appellees.
    
      
      He had decided the case.
    
    
      
      Tenants in Common—Appropriation of Specific Portion of Property by One Tenant— Effect.—See Robinett v. Preston, 2 Rob. 277; Worthington v. Staunton. 16 W. Va. 208, 240.
    
    
      
      Same — Deed from One Tenant — Effect.- -In Woods v. Early, 95 Va. 313. 28 S. 33. Rep. 374, the principal case is cited as authority lor the proposition that the conveyance from a tenant in common carries to the grantee or grantees only an undivided interest in the properly, it matters not by what description the interest in the property is conveyed.
      In Buchanan v. King, 22 Gratt. 422, it was said: “It is well settled that a convej'ance by metes and bounds of part of an estate held in common, though valid against the grantor, cannot prejudice the rights of the co-tenant, unless followed by entry and adversary possession. The grantee becomes thereby merely a tenant m common with the co-tenants of his grantor; his possession is in presumption of law, trie possession of all, and is to be deemed in support and not in derogation of the common title. Robinett v. Preston, 2 Rob. 273; Hannon v. Hannah, 9 Gratt. 146. ”
    
    
      
       Same — Conveyance of Specific Portion of Property by One Tenant — Effect upon Partition. — In accord with the proposition succinctly and clearly laid down in the third headnote, see McKee v. Barley, 11 Gratt. 346; Robinett v. Preston, 2 Rob. 277. See also, principal case cited as to this point in Worthington v. Staunton, 16 W. Va. 208, 240.
    
    
      
       Partition — How Made. — On this subj ect, see Howery v. Helms, 20 Gratt. 1, an & foot-note; in which note it is shown that, while at common law partition must be in kind, yet, by statute (Code of 1849, ch. 124, § 2. p. 526, Code 1887, § 2564). when necessary for the best interest of all concerned, a sale maybe decreed.
      In Roberts v. Coleman, 37 W. Va. 158, 16 S. E. Rep. 487, it was said: “Notwithstanding this statute, prima facie partition must be in kind; each parcener being allotted his several share. Custis v. Snead, 12 Gratt. 260; Cox v. McMullen, 14 Gratt. 82."
      
    
    
      
       Same — Allotment — Assignment. — In Henrie v. Johnson, 28 W. Va. 194, it was said: “The court has no right to make an arbitrary allotment. It should, so far as it can do so without inj ustice to others, assign each co-tenant that part most valuable to him. If there are several parcels, it need not divide each parcel, but may assign one parcel to each co-tenant. (Freem. on Co-tenancy and Partition, § 522; Smith v. Barber, 7 Ohio, part 2, 118; Hill v. Dey, 14 Wend. 204; Cox v. McMullen, 14 Gratt. 82.)"
      
    
    
      
      So in the record; but obviously it should be “two.”
    
   SAMUBBS, J.

At the date of the covenant between Donnally and James Wilson, August 16, 1821, Donnally had but an equitable title to the fee simple in the land, the subject of that covenant; and although his covenant, if he had the legal title, might have operated under the statute of uses as a covenant to stand seized to the use of James Wilson of one undivided moiety thereof, with warranty, yet having but an equitable title, this result could not at that time follow. See 1 Rev. Code, p. 370, l 29. Whether the fact that Donnally afterwards, on the 1st day of February 1830, acquired the legal title from John Wilson, could retroact on his covenant with warranty to stand seized to the use, and by estoppel or rebutter be held to pass the legal title to James Wilson, it is not material *in this case to enquire. See Doswellv. Buchanan’sex’ors, 3 Geigh 365. Whether the estate was legal or merely equitable, the interests of Donnally and James Wilson were the same; that is, an equal undivided -moiety to each. These part owners obviously regarded themselves as having a merely equitable title on the 16th August 1821, the date of their covenant, and on the 1st January 1829, when James Wilson assigned his interest to Peter Grant. After this assignment Peter Grant in his lifetime, and his heirs after his death, held in common with Donnally. In this state of the subject Donnally, one of the part owners, could not appropriate to himself any specific portion thereof, or do any other act whatever in derogation of the right vested' in Grant’s heirs, to enjoy equally with himself the common property, and every parcel of it. Robinett v. Preston’s heirs, 2 Rob. R. 273; Varnum v. Abbott, 12 Mass. R. 474. Whether Donnally did by his deed of February 2d, 1830, attempt to convey to John J. Cabell the upper portion of the upper half of the common subject, or only an undivided moiety thereof, is not very clear, as the terms of the deed are somewhat ambiguous and repugnant in themselves. Construing the deed, however, in reference to the rights of the parties, and the condition of the property, it must be held that the deed passed only an equal undivided moiety of the common subject; and that Cabell and Grant’s heirs thereafter held in common the whole subject, and every part thereof.

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, if upon partition such portion shall fall in severalty to the party so making the deed or contract, he will be bound by his act. McKee v. Barley, 11 Gratt. 340.

*The interest of one undivided moiety held, originally by Donnally, and transmitted by successive conveyances to the appellants, and the like interest held by James Wilson, and transmitted by like conveyances to the appellees, remain a common subject, except in so far as they have been varied by the agreement of August 8th, 1822, between Donnally, Wilson, Lovell and Bream, ratified by Cox April 1st, 1844, in regard to the use of the coal lands, a portion of the common subject.

The law of partition of real estate requires that each part owner shall have in severalty a part equal to his interest in the whole subject, if practicable, having a due regard to the interest of all concerned. Yet it frequently occurs, that because of the limited extent or the nature of the property, it is impossible to make partition as above indicated, without impairing the value of all the portions, or of some of them. In such cases the law affords other means for doing exact justice to each and all: instead of dividing the property into shares of equal values, it may be divided into shares of unequal values; and when so divided the law as it originally stood, and as amended by the statute, Code, ch. 124, § 2, p. 526, will correct the inequality by means of a charge of money on the more valuable in favor of the less valuable portion, or by other means recognized in the law of partition.

There is enough in the record to show that the common property is of little value for any purpose other than the manufacture of salt; that the coal lands, a portion of the subject, was partiallj7 severed by Donnally and Wilson from the land lying between the hill and the river, by their contract with Govell and Bream, dated August 8th, 1822, and ratified by Cox 1st April 1844. There is, moreover, enough to show that the space lying between the hill and the river is only sufficient for the salt furnaces, and their necessary buildings *and fixtures, as contemplated by Donnally and Wilson, in their contract of August 8th, 1822, with Govell and Bream; that is to say, two salt furnaces to Donnally, and the same number to Wilson. To give to each class of part owners the full enjoyment of their interests under the contract about the coal lands, and of their right to have two salt furnaces and tne means of working them, it seems inevitably necessary to divide the land ljdng between the hill and the river into two parcels of equal quantity. The general rule of partition requires an allotment of those parcels to the part owners; yet it may benefit both classes of owners to assign the parcels; or it may benefit one class without injury to the other, to assign rather than to allot; in either case the commissioners might avoid the risk of an unfortunate allotment, by resorting to an assignment. The commissioners to make partition are vested with ample powers to give to each part owner a several proportion of the subject equal to his relative proportion in the whole subject. Before a final decree of partition can be made, commissioners should be appointed to ascertain and report to the court whether there' be any inequality in the values of the parcels of land, of equal quantity, lying between the river and the hill, and the extent thereof; and further to ascertain and report the best mode of correcting the inequality, if any; whether bj7 a charge of a gross sum of money payable at once ; or of an annual sum of money payable for a definite time or for all time; or if these means be found impracticable or inconvenient, then by what other means provided by the law of partition.

Although it is said that some of the tenants in common have held portions of the common subject for their separate use, yet the fact is not so alleged in pleading and shown by proof as to justify the court, in the present state of the record, in making a decision *how the fact is, nor in a decision whether such separate use was or was not had under circumstances requiring an account of rents and profits between the two classes of tenants in common. It is also said that permanent improvements adding to the present value of the common subject, have been made by some of the parties now' before the court, or ihose under whom they claim, and to whose rights for compensation for improvements they succeed; but there is not enough in the pleadings and proof in the cause on which to found a decree. To avoid the danger of doing injustice, it will be best to leave the subject ox accounts for rents and profits and of permanent improvements to be disposed of by the Circuit court, with the aid of such lights as the parties in interest may shed thereon.

I am of opinion to reverse so much of the decree as is in conflict with the principles here declared, and to affirm it as to the residue.

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

The decree was as follows:

The court is of opinion, that William A. McMtillin, James M. Baidley, Rachel Grant and Ann R. Spalding have title in fee simple to one equal undivided moiety of the tract of land in the bill and proceedings mentioned as containing eighty acres; and that Charles A. Cox, William Cox, Cornelius Cox, Mary Jane Cox, George M. Cox and Francis Cox have title in fee simple to the other equal undivided moiety thereof; and that the land is held by these two classes of part owners as tenants in common.

The court is further of opinion, that in the case as it now stands, partition can be made only between the two classes, without going into a partition between the members of the same class.

The court is further of opinion, that the contract '^between Andrew Donnally, James Wilson, Joseph Nov-ell and J. M. Bream, dated August 8th, 1822, and ratified by William R. Cox, April 1st, 1844, in regard to the coal land, a x>art of the common subject, is binding upon the parties before the court; and that it has been properly carried into effect by the decree of the Circuit court.

The court is further of opinion, that inasmuch as the property held in common is valuable only for the purposes of manufacturing salt; that as the coal lands have been appropriated by valid contract (almost exclusively) to the purpose of furnishing fuel for salt furnaces limited in number, and divided in proportion to the interests of the part owners; that as the space between the Kanawha river and the hill is the only portion of the common subject suitable for wells, furnaces and other structures necessary in the manufacture of salt; that as the limited extent of this space will afford room only for the two furnaces and other necessary buildings which Donnally and Wilson respectively were allowed to have and supply with fuel under 1 he contract with L/ovell and Bream: that therefore the land lying between the hill and the river should be divided equally in quantity by a line running from the river to the hill.

The court is further of opinion, that before partition can be made, commissioners should be appointed to ascertain the line of partition between the parcels of equal quantity ; and further to ascertain whether these parcels be of equal or unequal values. If of unequal values, then to report the best, mode of correcting the inequality; whether by a charge of a gross sum of money, or of an annual sum payable for a definite time, or for all time; or if these modes be impracticable or inconvenient, then by such other means as are provided by the law of partition.

The court is further of opinion, that the commissioners appointed to make partition may allot each of the ^classes of part owners one of the equal quantities into which the common subject shall be divided. If, however, the interests of both classes will be promoted, or if the interests of one class will be promoted, without injury to the other class, in such case the commissioners may assign the parcels without putting the owners to the risk of an allotment; these parcels with the improvements thereon, annexed to the freehold, to be held in severalty.

The court is further of opinion, that although it is said that some of the tenants in common have held portions of the common subject for their separate use, yet it is not so alleged in the pleadings or shown by the proof in the record as it now stands, as to justify the court in deciding whether such separate use was had, or if had, whether it was under- circumstances to require an account of rents and profits. That although it is also said that permanent improvements adding to the present value of the common subject, have been made by some of the parties now before the court, or those under whom they claim, and to whose rights to compensation they succeed, yet there is not enough in the pleadings and proof on which to found a decree; that this court cannot at this time gfive any directions for an account of rents and profits, or of improvements, but must leave these subjects to be acted on by the Circuit court hereafter, if the parties in interest shall bring them or either of them to the notice of the court in a manner for. judicial action.

The court is further of opinion, that the decree of the Circuit court, so far as it is in conflict with the principles herein declared, is erroneous, and that there is no other error therein. It is therefore adjudged, ordered and decreed, that so much of said decree as is declared to be erroneous, be reversed and annulled, and the residue thereof affirmed; and that the appellants recover of the appellees their costs expended in the prosecution of their appeal in this court.  