
    Moore v. Eagles.
    "} V From New-Hanover. . J
    A. and 13, being tenants in common of a tract of land, situate in an isl- and in the Cape-Pear river, agree by deed, “ that as to those lands on the said island which lie below the causeway or great road through the island, A’s two-thirds shall be taken all together, and shall begin at the lower end of the said island, and be bounded by the North-West River on the one side, and by the North-East River and Great Creek on the other; and B’s one-third shall be taken off of the remainder, lying above the said A’s and below the said cause- ' way; and as to all that part of the island belonging to them, lying above the said causeway, A’s two-thirds shall be taken next the thoroughfare and North-East River, and the said B’s one-third shall be ' taken next the causeway.” This agreement is sufficiently certain for each tenant to know his share, and dissolves the tenancy in common.
    This was a petition filed in the County Court of Brunswick, for partition of certain lands, lying in Eagles’s island, in the river Cape-Fear. The petition stated that Joseph Eagles, late of the county of Brunswick,, who departed this life in the year 1791, was at the time of his death, seised and possessed in fee simple of a certain estate and tract of land, situate, lying and being in Eagles’s island aforesaid ; that he died intestate and the, land aforesaid, by the then'Lawsof descent in this state, descended upon his issue male, in equal portions as tenants in common j and that the said Joseph, left issue male, two sons, Richard and Joseph. That in the year 1806, the said Richard and Joseph being still tenants in common of the land aforesaid, the petitioner Maurice Moore purchased out all the said Richard’s right, title, interest, claim or demand whatever in said land, who by deed bearing date in the same year, conveyed the same to the petitioner, who thereby became a tenant in common with the said Joseph. And to the end that a severance might be made of the said tenancy in common, in the land aforesaid, between the said Joseph and the petitioner, and that each might' know and have his part distinct ahd separate from tine other, the petitioner pray-cd the Court to appoint commissioners to' lay off and divide the said land between him and the said Joseph.
    To this petition, the Defendant, (who was an infant,) by his Guardian, put in a plea, setting forth, that Richard Eagles, the elder, was seised and possessed of certain lands, situate in Eagles’s island, aforesaid, and by his last will and testament, dated the 23d day of March, in the year 1769, and which had been duly proved, devised two-thirds of his lands upon said island, to his son, Joseph Eagles, in the petition mentioned, in fee, and the other third to his daughter, Susannah Elizabeth Eagles j in fee: That the said Susannah Elizabeth, intermarried with Alfred Moore, Esquire; and they by deed bearing date the day of in the year, conveyed the third part of said lands, devised to the said Susannah Elizabeth as aforesaid, to Maurice Moore, Esquire, who, by deed reconveyed the same lands to the said Alfred Moore. That Joseph Eagles, named in the petition, departed this life as set forth in the petition, and that his share in the said lands, to wit, two-third parts thereof, deséended to his sons Richard and the Defendant Joseph. Admitting that the petition purchased of Richard, as set forth in the petition, the Defendant stated, that he was advised, the lands aforesaid devised to the said Joseph Eagles and Susannah Elizabeth Eagles,, were held by and belong to the said Alfred Moore, Maurice Moore and the Defendant, as tenants in common, and that no division of said lands could take place according to the laws of this State, by virtue of any petition filed for that purpose, unless the said Alfred Moore was made a party to the petition — That no severance of said tenancy in common or partition of said lands, had been made among or between the parties claiming said lands or shares therein, under the last will and testament of the said Richard Eagles, the eldejc,; and that the said lands then remained to be divided between the said Alfred Moore* Maurice Moore and the Defendant, as tenants in common. That Alfred Moore was not named in the petition either as petitioner or Defendant, ñor was any division of said lands sought, as related to the interest of said Alfred Moore therein 3 and Defendant demanded the judgment of the Court, whether he should he compelled to make any other or further answer to the petition, until the said Alfred Moore should become a party to the petition.
    To this plea of the Defendant, the petitioner filed a replication, stating that his petition vyas sufficient in Law to be answered unto by the Defendant, without the said Alfred Moore being made a party to the same •, because he averred, that long before he filed his petition, to wit, on the twenty-eight day of January, in the year 1788, Joseph Eagles, father of the Defendant, then being proprietor of two-thirds, and the said Alfred Moore of one-third, as tenants in common of the said lands, did, by a deed indented and bearing date the day and year aforesaid, make partition of the said lands, and did thereby dissolve the said tenancy in common, as by the said deed would more fully appear.
    The deed, referred to in the replication, was in the following words, to wit,
    “ Whereas Richard Eagles, formerly of Brunswick County, Gentleman, in and by his last will and testament, devised his lands on the great Island opposite Wilmington, commonly called Eagles Island, to 'be divided between his son, Joseph Eagles, pally to these presents* and Susannah Eagles, (now Susannah Moore,) his daughter, in the proportion of two-thirds*to his said son Joseph Eagles, and one-third to his daughter Susannah; and whereas the division hath never been, made: This Indenture therefore witnesseth, that the said Joseph, on the one part, and Alfred Moore, husband of the said Susannah, on the other part, have agreed, and by these presents do agree, that the said lands shall be divided in the following manner, that is to say, that as to all those lands on the said island which belonged to the said Richard Eagles at his death, and which lie below the causeway or great road through tlie said island, the said Joseph’s two-thirds shall be taken all together, and shall begin at the lower end of the said island, and be 
      bounded by the North-West River on the one side, and by the North-Bast River and Great Creek on the other; and the said Susannah’s third shall be taken off of the remainder, lying above the said Joseph’s-^ and below the said causeway; and as to all that part of the said island belonging to them as aforesaid, and lying above the said causeway, the said Joseph’s two-thirds shall be taken next the thoroughfare and North-East river, and the said Susannah’s part, or the other third, shall be taken.next tire causeway. If any lots immediately opposite to Wilmington shall be found still belonging to them, they shall hereafter be divided as they may agree.
    « A. MOORE, (Seal.)
    « JO. EAGLES, (Seal.)
    “ Signed, sealed, and delivered,
    this 28th January, 1788, in presence of
    “Jiro. SwAirar,
    “ James Read.
    To this replication the Defendant demurred, and the Plaintiff having joined in demurrer, the case was sent to this Court for the opinion of the Judges ; and was argued by Jocelyn, in support of the demurrer, and by J). Moore, against it. The arguments advanced in support of the demurrer, are relied upon by Locke, Judge, and noticed in the opinion delivered by hirn in this case.
    
      Jt. Moore, against the demurrer. — It is insisted that the deed set forth in the replication, is only an agreement. and not a partition. To this it may be answered, that every deed must contain an agreement, and the question on this point is simply this, “ does the deed in question contain such substance and such legal form, as to produce those legal effects intended by the parties ?” Tenants in common have seroeral estates, totally independent of each other. A partition therefore cannot be effected by either of the commoners conveying any estate to the other. For if he convey his own estate, then the grantee owns the whole in severalty. That a tenant in common, any more than another person, cannot convey to a grantee what belonged to the grantee before, is certain: Nothing can be more against reason than such an attempt, and accordingly it is a maxim, “ that what is , once mine cannot be more mine.”
    
      There are several ways by which commoners may make partition; among others is that by deed. What must such deed contain to effect the purpose of the parties ? Not a conveyance of any estate ; and if not, then it can contain nothing else but an agreement, fixing the lines of separation. Should that be manifest by the words used to express the meaning of the parties, every thing necessary has been done. With respect to fixing the lines, if there ever was a case where certainty could be arrived at, this is surely such a one : because the parties are to set off at two opposite points ; one is a great causeway and main road, the other is at the junction of two great rivers. They are then to approach, one party taking two-thirds, the other one-third, until they meet at a place so described as that it cannot be mistaken, for it must form a line exactly parallel with the great causeway.
    . It will be observed, that the partition, if made at all, is made by the deed. So soon, therefore, as that deed was duly executed, the business was done ; nothing posterior* could alter its nature, eithor to amend it or to make it worse. Had the parties gone a year afterwards and marked, a line, this act would not have made the partition : tire deed had done that before. All that the line Could effect, would have been to bind the parties to it, and prevent any measuring or further trouble. If this reasoning be unsound, we can no longer say that partition can he made by deed for no deed ever did or ever can contain a line 5 it can only describe, and the precision with which that description shall be made, must ever depend ou circumstances. It is a part of the Law on this subject, that commoners may make partition of lands which lie in other counties, that is, at a distance., and where it is physically impossible that any thing inore can be doné than to describe where the boundaries shall be, winch the parties understand, and are able to make others understand. That is certain, which can be made so, is a maxim in our Law, and governs this case, as well as many others. But it is said, that this deed meant that the land should be divided by value and not m ... ,. _ _ _ by measure. To this it is answered, that the deed says nothing about value, and this is but an inference made by the opposite counsel. There is no principle of Law better ascertained that this, that the Judges must construe every agreement in writing so as to carry the intention of the parties into effect; and it is found that the Judges have pressed the English language bard to carry that principle of Law, reason, justice, and liberty too, into effect. It is sank the words about value, though left out, ought to be understood ; and why ? To make two men tenants in common, who declare by their deed, it is the thing they intended to destroy. Two men agree to alter their condition as tenants in common, and expressly say in the deed, that they mean to be tenants in severalty : yet in construing their deed, we will undertake to say the parties have omitted certain words, and although they intended to make partition, yet they have not done it. It is alleged, that the deed only contains an agreement to make partition at some future time, because it declares that the land shall be so and so divided. But the parties do clearly-set forth, that they do not choose to continue tenants in common any longer \ why then postpone the severance ? They took all the trouble to effect their purpose that the case required. It cannot be believed, that Judges will seize on such a criticism to overturn the honest, fair, and useful purposes of the parties. But in truth it is technically proper; because, at the time those words were expressed, the act was incomplete, and something in future was to be done : the parties were to sign, seal and deliver the agreement to each other; and this manner of expression will be found in national treaties, and in a variety of other writings on tlie most interesting subjects. Under this deed, it was clearly understood where the two-thirds of Eagles lay, ■as well as the one-third of Moore i the tenancy in com» mon must then have been dissolved ; fop tenants in common are so united in possession, that neither can know whicíi part belongs to one or the other: the moment that point is settled, the tenancy in common is dissolved.
   Locke, Judge

I regret very much on this question, I should differ in opinion from my brethren, who have overruled this demurrer. But as it is my duty to be guided by the best judgment I can form on this subject, and not by the opinion of others, I shall briefly state the grounds on which my opinion is formed. The deed, set forth in the replication of the petitioner, does not state either the beginning, the courses, or the lines of Moore’s one-third, but only on what part of the island it shall be laid off. It does not state whether his share shall consist of one-third in quantity or of one-third in value; it declares that one-third (meaning certainly whatever share was devised to Mrs. Moore,) should be laid off in a certain part of the island. I have always understood a tenant in severalty, to be one whose estate is severed and separated from that of all others and who completely knoweth his own land. I would then ask, can any man, from this deed, know precisely Moore’s one-third ? But it is said, “that is certain, which can be made so,” and that as this deed says, Moore’s share shall be taken off adjoining the causeway, any surveyor can ascertain where this share will be, and that to effect a partition, it is not necessary to have a survey and marked lines. To this I answer, that unless the deed of partition should state some point at which the beginning shall be, some courses to be run by a surveyor, or some natural boundary, which can with certainty be ascertained, the partition cannot be so made as to leave an estate in severalty, to one of two tenants in common. .1 am not able, from the description of this deed, to say that any such certainty is contained therein, or that by any possibility it can be made certain. For I think one-third of ihijs tract can be .laid off, so as to answer the. description of this deed, in as many different ways as the fancy of twenty surveyors might suggest. If surveyed by one to day, from the face of the deed, he would give land to Mr- Mqpre, which another on to-morrów would take from him, and thus the land would be Moore’s or Eagles’s, according to chance, or the caprice of a surveyor. — It has been further said, that the land just below the causeway, is certainly Moore’s, and if he can place his foot on a single spot, and say it is his, that is evidence of a partition. I admit that it is as to that spot, but not as to the whole third ; and if Moore be a tenant in common of a single acre, although as to the rest he may be a tenant in severalty, yet this demurrer ought to be sustained, and Moore made a party. It is further urged, that if this demurrer be sustained, and commissioners be appointed under our act of Assembly, to make partition, this deed will not restrain them from laying off Moore’s third where they please, and that the Court cannot impose terms which the commissioners are bound to pursue. I admit, that if such an order should be made by the Court, and commissioners appointed under it, such a consequence might ensue. But I think no such order Can or ought to be made. I am far from viewing this deed as a mere nullity; I consider it as a covenant binding Eagles and his heirs, and all claiming under him, to divide according to the spirit of this instrument, and that this is a case where the Common Law remedy cannot be used 5 that when Moore isnnade a party, he has nothing to do, but to plead this deed, in order to oust the Law Court of its jurisdiction, and compel the petitioner to resort to a Court of Equity, which will decree partition to be made according to the deed. For the act of Assembly affords a remedy, only where there is neither a partition nor a covenant to divide in any particular manner ; leaving the commissioners with full powers to divide equally between the parties, and to ascertain the difference in value of the respective sliare^ The remedy-therefore given by the statute, only extending to cases where no partition has been made, nor any agreement binding the parties to divide in a particular way, seems to me not to embrace this case, but to leave the parties to such remedy as was in force before the passing of the act. — For these reasons, I am of opinion, that the demurrer ought to be sustained. — But,

By Haii, Lowkie, Weight, Judges — Let the demurrer be overruled. *  