
    James Burden, et al., v. James B. Throckmorton.
    Partition.
    Where the owner of three-fourths interest in a tract of four hundred twenty-six acres of ground sells his interest, and instead of conveying his undivided interest, conveys a stated number of acres which was assumed to be his whole interest, bis purchaser will not be disturbed in the land he received provided it is found in a partition proceeding that the remaining one-fourth interest in value can be carved out of the tract not conveyed to such purchaser.
    
      APPEAL PROM ROBERTSON CIRCUIT COURT.
    January 13, 1875.
   Opinion by

Judge Pryor:

There is nothing in the record showing that Mordecai Throckmorton was ever divested of title to his interest in the tract of land claimed by appellants. He may have received more of his father’s estate than the other children, but there has been no settlement of the estate or any proof exhibited showing its character or value. The death of one of the children left the land in controversy to be divided between the four surviving children, Mordecai being one of them. At the time he sold to Burden he was the owner of one-fourth of the whole tract of land, that contained in all four hundred twenty-six acres, and shortly after the sale acquired by purchase the interest of two of his brothers, by which he became the absolute owner of three-fourths of the whole tract. This title to three-fourths of the laud Mordecai obtained prior to the conveyance made to the other appellants. The conveyance to Burden defined the boundary of his purchase, leaving three hundred twenty-six acres of land out of which to allot to appellee his one-fourth interest. There was then no reason for disturbing the sale of the land to Burden, or in requiring him to account for rents, unless the one hundred acres conveyed to him was worth greatly more (not including the value of the improvements placed upon the land by him) than the remaining portion of the tract.

The chancellor, under the circumstances, ought not to disturb Burden’s purchase unless it is made to appear that an equal division of the land cannot be made without it, and as one-fourth of the whole tract is only to be allotted, Mordecai having owned the other three-fourths, we see no reason for depriving Burden of any part of his purchase. As to the other appellants, they must abide the loss, if any. There was never any adverse holding on the part of their vendor.

The judgment below is therefore affirmed as to all the appellants but James Burden; and as to him the judgment is reversed and cause remanded, with directions to allot to the appellee his interest out of the three hundred twenty-six acres, if by so doing he can obtain his one-fou.rth in value of the land. The appellee is entitled to his costs against the appellants, except Burden, and he has his judgment for costs against appellee.

J. A. Buckler, J. & J. W. Rodman, for appellants.

B. G. Willis, for appellee.  