
    Robinett v. Preston’s Heirs.
    August, 1843,
    Lewisburg.
    (Absent Cabell, P., and Brooke, J.)
    Joint Tenants — Conveyance of Part by One Tenant— Effect.* — At the trial of the mise joined in a writ of right, after the demandants had introduced a grant to their ancestor, embracing the land demanded, the tenant introduced an earlier grant of the land to two grantees, and offered to give in evidence a deed from one of those grantees, conveying by metes and bounds a particular part of the land to a person under whom he (the tenant) claimed, and also offered other evidence tending to prove that partition had been in fact made, though without deed, between the two grantees. The circuit court, being- of opinion that the conveyance by metes and bounds by one joint tenant, of a portion of the land held jointly, was void, refused to permit the same to go in evidence to the jury; and a verdict and judgment were rendered for the demandants. Held, the circuit court erred ; and its judgment therefore reversed, the verdict set aside, and the cause remanded for a new trial, on which the conveyance, if offered, is not to be rejected on the ground that it is void.
    This was a writ of right in the circuit court of Lee, brought by certain persons as the heirs of Walter Preston against Isaac Robinett. At the trial of the mise, the demandants introduced a grant of the commonwealth of Virginia, dated the 30th- of May 1800, to Walter Preston for 1000 acres of land lying partly within the disputed territory comprised within or between 274 Walker’s and Henderson’s lines; and the tenant admitted the demand-ants to be the heirs of the said Walter Preston. Whereupon the tenant introduced a copy of a grant of the commonwealth of North Carolina, dated the 12th of July 1794, to Andrew and David Greer for 640 acres of land beginning on Henderson’s line and lying south thereof, within the said disputed territory:* and the said tenant also introduced, as a link in his chain of title, and to connect himself with the grant to the said Greers, a deed dated the 26th of September 1797, from Andrew Greer, one of said grantees, to .David Archer, conveying by metes and bounds 320 of the said 640 acres of land, being the northern half thereof. To the introduction of this deed as evidence the demandants objected, upon the ground that as no partition of this grant had been made by the grantees, it was not competent for one of them, a joint tenant of the granted land, to convey by metes and bounds such portion as he pleased, without the assent of his cotenant, and in prejudice of his rights; and that such conveyance is wholly void. The tenant contended, that from the great lapse of time, and other circumstances, the assent of David Greer, the other grantee, to this partition of Andrew Greer by his deed of conveyance aforesaid, was to be presumed; and in support of such presumption offered two depositions of William Wilson, mentioning an old survey by one Thompson for the purpose of partition, and also offered the conveyance by said Archer of this 320 acres of land to Lawrence Horn, and shewed that the sheriff of Hawkins county, Tennessee, levied on this land and sold and conveyed the same to John Hannah, who conveyed the same on the 27th of November 1804 to William Armstrong, under whom, in 1816, possession was first taken; which possession has been regularly transmitted, by various deeds 275 of conveyance, Mown to the tenant, and to the commencement of this suit on the 24th of July 1837, and to this time. The tenant also introduced the following witnesses. Amos Grantham proved, that wishing to purchase some of the land, he went in 1816 to Knoxville, Tennessee, where he found George Wilson, a son in law of one of the said Greers, who claimed half of said North Carolina grant, and shewed the witness the grant, and offered • to sell to witness half of it for 800 dollars, which witness refused to give; and Wilson said at that time, that the land had never been divided, that he had never seen it, and that he knew nothing of it except by information. Lincoln Amis proved that the common report in the neighbourhood of the land was, and is, that one Thompson a surveyor, wishing to purchase some of the land, had divided the same; but how he divided it, or by what authority, the witness has not heard and does not know. Stephen Wilborn proved, that more than 40 j'ears ago he saw some one surveying this land for William Armstrong, as he understood; but whether it was Thompson, or who it was, the witness does not know. It appeared at the trial, that there was less than 640 acres in the North Carolina grant; that the quantity claimed by the tenant under Andrew Greer is about 220 acres; and that the land so claimed by the tenant is within the grant to Walter Preston. There was no evidence to shew what had become of the other half of the North Carolina grant, or whether it is possessed or claimed by any person, except the evidence before stated; nor did it appear which of the Greers was father in law to Wilson, nor whether they are living or dead, or whether there be any descendants or heirs of them or either of them.
    The circuit court, upon the authority of certain cases decided by the supreme courts of Massachusetts, Connecticut and Vermont, (which it stated were to be found in 12 Mass. Rep. and 9 Vermont Rep. 276 or referred to ^therein) held that the conveyance by Andrew Greer to David Archer, being a conveyance by metes and bounds by one tenant in common or joint tenant, of a portion of the land held jointly or in common, was void, and refused to permit the same to go in evidence to the jury. To this opinion the tenant excepted.
    A verdict was found for the demandants, for so much of the land demanded as was held by the tenant, and for one cent damages; and judgment was rendered thereupon. To which judgment a supersedeas was awarded.
    The cause was argued by the attorney general for the plaintiff in error, and M’Comas for the defendants in error.
    In the course of the argument, tfye following authorities were cited and examined: Porter v. Perkins &c., 6 Mass. R. 233; Porter v. Hill, 9 Mass. R. 34; Bartlet v. Harlow, 12 Mass. R. 348; Varnum v. Abbot &c., 12 Mass. R. 474; Starr v. Reavitt, 2 Conn. R. 243; Hinman v. Reavenworth, 2 Conn. R. 244, note (a) ; Mitchell v. Hazen, 4 Conn. R. 495; Griswold v. Johnson, 5 Conn. R. 363; Taylor v. Horde &c., 1 Burr. 108; 2 Co. Rit. 237 a., 237 b., 238 a., 238 b.
    
      
      Joint Tenants — Conveyance of Part by One Tenant-Effect. — The principal case is cited in McKee v. Barley, 11 Gratt. 348, as authority for the proposition, that although a conveyance by one joint tenant of a part of the land 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 he was entitled to, and the grantor could not deny his deed.
      The principal case is further cited in this connection in Cox v. McMullin, 14 Gratt. 90; Boggessv. Meredith, 16 W. Va. 27 ; Worthington v. Staunton, 16 W. Va. 239.
      See foot-note to Cox v. McMullin, 14 Gratt. 82, and monographic note on “Joint Tenants and Tenants in Common.”
      Same — Same—Same.—The principal case is cited in Buchanan v. King, 22 Gratt. 422, for the proposition that a conveyance by metes and bounds of part of an estate held in common, though valid against the grantor, cannot prejudice the rights of the coten-ant, unless followed by entry and adversary possession. The grantee becomes thereby merely a tenant in common with the cotenants of his grantor ; his possession is in presumption of law, the possession of all, and is to be deemed in support and not in derogation of the common title. j
    
   ARDEN, J.

As between joint tenants, one cannot do an act to the prejudice of the other; but the joint tenancy can at any time be destroyed by a conveyance by one of the joint tenants to a stranger. Such conveyance severs the joint tenancy by destroying the unity of title, and also by destroying the unity of possession; for the alienee and the remaining tenant have several freeholds. 2 Cruise’s Dig. title 18, ch. 2, § 10. But though cases of severance by the conveyance of one joint tenant are of frequent occurrence, this happens, it is said, where such conveyance is of the joint tenant’s estate in the land, but not where it is a part of the land. As between the joint tenants, there may *be good reason for holding that a conveyance by one, of a specific parcel of the land, should not affect his co-tenant. They are seized per mi et per tout, and neither has a right at his election to convey a particular portion, so as to affect or prejudice his cotenant. The cases in Massachusetts Reports, cited in the argument, establish the proposition that one shall not convey so as to prejudice the cotenant. And this is the extent to which they have gone. As between the tenant conveying and his grantee, in one of the earliest cases (Porter v. Hill, 9 Mass. R. 34), it is intimated that such conveyance may operate by way of estoppel against the grantor; which could not be if the deed were to be considered as entirely void.

The earlier cases in that court arose in controversies where the tenants were parties. But in Varnum v. Abbot &c., 12 Mass. R. 480, the question directly arose, whether such a conveyance had anjr effect as against the grantor and those claiming under him? After reviewing the cases in which it had been held that such a conveyance could have no legal effect to the prejudice of a cotenant, the court proceeded to consider its effect as against the grantor, and determined that it is effectual against him. If upon a partition the share assigned to the cotenant does not include the part conveyed, the cotenant has got all fee has a right to,, and the grantor cannot be permitted to deny his deed. So in the case of a release by the cotenant to the alienee, of his moiety in the part conveyed, the alienee would have a deed from each, and yet, if the first conveyance was merel3r void, it could not help the second; and so the party in possession, with deeds from each of the tenants who alone had any pretence of title to the land, would still be unable to maintain the possession. Eor these and other reasons given by the court, they determined that the deed is not absolutely void. *With us, there are still stronger reasons (if any were required) for holding such deeds not to be void. All grants are to be most strongly construed against the grantor; and by our statute, 1 Rev. Code, ch. 99, § 20, p. 368, all aliena-tions purporting to pass or assure a greater right or estate than the grantor may lavr-fully pass or assure, shall operate as alien-ations of so much of the right and estate as the grantor might lawfully convey. Under the covenants of such a deed as this, though it might be ineffectual to pass - the particular tract as against the cotenant, yet as against the grantor and strangers it would be effectual to pass the interest of the grantor in the tract. Possession under it would support a release from the coten-ant : and if the part conveyed were assigned to the alienee on partition, the title would be absolute at law. The deed being good against the grantor, the entry of the tenant under' it would be lawful; and though it might be inoperative so far as the rights of the cotenant were thereby prejudiced, yet as it would invest the grantee with the estate of the grantor so far as he could lawfully convey, the grantee would be tenant in common with the cotenant of his grantor, to the extent of the interest conveyed. His possession and seisin would be the possession and seisin of both, because such possession and seisin would not be adverse to the right of his companion, but in support of their common title.

I think, therefore,1 that the court erred in deciding that the deed was merely void.

Even if the matter were more doubtful than I think it is, still the court erred in excluding the deed. Evidence was introduced tending to prove that a partition had been made between the tenants. . The jury were the judges of the effect of that evidence. If a partition had in fact been made,’ though without deed, and the parties had held in severalty afterwards for a period 'sufficiently long to bar a writ of right, the jury might*have presumed a deed. Whether the circumstances in evidence would have justified such presumption, it is not necessary to determine. The deed, in connexion with the other evidence, was admissible, as tending to prove facts from which such a presumption might arise.

The deed, too, was proper evidence on other grounds. The tenant (as the bill of exceptions discloses) relied on the possession. Whether the evidence would have made out such a possession as of itself would have been sufficient to bar a recovery, was a question of fact for the jury. If the tenant claimed to hold by virtue of the deed, though it might not have furnished evidence of title, it would have shewn that he claimed under colour of title, and was not a mere naked trespasser. In that point of view, and for the purpose of defining and designating the extent of his possession, the deed was proper evidence.

I think the judgment should be reversed, the verdict set aside, and the cause remanded for a new trial, upon which the deed, if offered, is not to be rejected upon the ground that it was merely void.

The other judges concurring, judgment entered accordingly.  