
    FEATHER against STROHOECKER.
    Every partition, aa well as every exchange, implies not only a warranty at the election oftlie party, but a condition entire, the breach of which gives an entry into the whole; with this difference, however, that a voucher to warranty of the part evicted, affirms the partition, by the acceptance ofa compensation, while an entry for the condition broken defeats it. If, then, the whole or any less estate of freehold be evicted, in all or any part of a particular purparty, the partition may be avoided in the whole, whether it be of a manor that was entire, or of parcels that were several.
    G.’s heirs and S. being tenants in common of a tract of land a partition was made between them. One of the heirs of G. who had been married to one of the sons of S. was in possession of the land after the death of her husband, who came into possession as the tenant of his father; an ejectment having been brought by the one who claimed under S. to avoid the partition, on the ground that they had been evicted by a stranger, from part of the land allotted to S. Held: That she was not precluded from making defence because of her character of tenant.
    Error to the Common Pleas of Northumberland county.
    This was an action of ejectment by William Feather and Peter Strohoeeker against Leah Strohoeeker. The facts which gave rise to the question of law determined, were these: — Thomas Grant died, seized of a tract of land containing two hundred and seventy-five acres; his executors by authority of a power contained in his will, sold and conveyed-the land on the 14th June, 1816, to John Garber xn& John Strohoeeker; after which JohnGarber died intestate, and one of his sons petitioned the Orphans’ Court for a writ of partition and valuation of the undivided moiety of the land, without requiring it to be first separated from the interest of John Strohoecker. The inquest first made partition between Strohoeeker and Garber’s heirs, by assigning a certain portion to Strohoeeker and then executed the writ on the residue, as the several estate of the intestale. After the partition was thus made, Garber’s heirs sold parts df the land allotted to them, to different individuals. Leah Strohoecker,the defendant,was one of the heirs of Garber, and she and her husband, then living, came into the possession of the land, for which this ejectment was brought, during the life time of her father and under him. After the partition, an ejectment was brought by Rebecca Stedman for part of the land, and she recovered a verdict and judgment for ninety-five acres of it, and was put into possession. After this recovery, actions of covenant against Grant’s executors were brought both by Strohoecker by the administrator of Garber, which were, pending. The questions which arose out of thes'e facts were, 1. If the partition were not absolutely void ab initio, but confirmed by the consent of the parties in interest, was it not avoided by the eviction of one of them from part of the land? 2. Was the relation of tenant which Leah Strohoecker had to the plaintiffs such as to preclude her from her defence upon the merits?
    The defendant’s counsel requested the court to instruct the jury,
    1. That John Garber's heirs have an equal right with John Strohoecker to the land, in the deed oí Jane 14th,1816, not recovered by Rebecca Stedmaiit
    
    2. That the plaintiffs cannot support this ejectment, unless the jury are well satisfied, that the hundred acres in the possession of John Strohoecker and his alienees, are not equal to the eighty-five acres in possession of Garber’s heirs and their alienees; and then only for'one half the difference.'
    3. The defendant, being one of the heirs of Garber, is not a trespasser in any view of the case,' for the heirs of Garber have a lien Upon this land for one half the value of the land recovered by Rebecca Stedman, and cannot be disturbed until that lien is extinguished, or the money tendered.
    To which the court replied:
    ' 1st. They have such right, in case they do not recover their loss from Grant’s executors. If they recover from Grant’s executors, they have no right to contribution from the land allotted to John Strohoecker,as the share of theland on partition or'from the assignees.
    2. The plaintiffs can support their ejectment, whether the hundred acres in possession of Hoos and Honsal is equal in value, or not to the eighty-five acres in possession of Garber’s heirs and their assignees.
    3. If the defendant came in as tenant of Strohoecker, she' must restore the possession to her landlord. Garber’s heirs would have a lien on all the estate of John Strohecker for their distributive shares, if they do not recover full compensation from Grant’s executors, but that does not prevent the plaintiff’s recovery, before .that contingent lien is decided.
    
      Exception was taken by the defendant to the opinion of the court which was argued by
    
      t’¿reenough for plaintiff in error.
    
      Lashells, for defendant in error.
   The opinion of the court was delivered by

Gibson, C. J.

This action is brought to dispossess the defendant of land, which she claims to hold in common with the plaintiffs. A larger tract, of which the land in dispute is part, was held by John Garber, her father, in common with John Strohoecker the plaintiffs’ grantor. Garber died intestate, and in pursuance of a petition by one of his sons, the Orphans’ Court awarded a writ of partition and valuation of his estate, without requiring it, as ought to .have been done, first to be separated from the estate of Strohoecker by act of the parties or an action at the common law. The inquest made partition between Strohoecker and the heirs of Garber, in the first place, by assigning the lower part of the tract to the former, and then executed the writ on the residue, as the several estate of the intestate.

That the Orphans’ Court should have sanctioned the act of the Sheriff and inquest in making a preliminary partition, as the foundation of what was to follow, is not a little surprising. It is not easy to imagine, how any one but the heir or representative of an intestate, could be made a party to a partition in the Orphans’ Court. In the case of a tenancy in common by purchase,the judgment that partition be made, the application within a year to open it or make 'a new partition, the mode of producing equality of partition, or of yesting the title, the appointment of guardians ad litem, in short all the parts of the process, are peculiar to the courts of common law, and confided exclusively to the Supreme Court and the Common Pleas; from the benefit of which, to say nothing of the constitutional right of a trial by jury, the party ought not to deprived by any thing less than an express statute. On the other hand, the proceeding in the Orphans’ Court without provision for personal service or publication of notice to the surviving tenant, or for determining whether he held in common with the intestate, or for charging a sum on either purparty for owelty of partition, or in case the land cannot be divided, for deciding between the surviving tenant and the representatives of the dead one, which side shall take the whole, and many other matters, which, though perfectly manageable in the courts of common law, involve interests and estates too multiform and complicated to be embraced by the proceed-, ing in the Orphans’ Court, which is adapted exclusively to the case of a tenancy in common by descent. The partition between Strohoecker and the heirs of Garber, therefore,seems to have been originally void for want of jurisdiction; but taking for granted that the parties confirmed it, or rather made q yalid partition'in accordance with it, by taking possession and exercising acts of exclusive ownership, on the the principle of Ebert v. Wood, 1 Binney, 216, a question arises whether it was not avoided by the subsequent eviction of a part of one of the purpartys.

This question is of easy solution. Every partition, as well as every exchange, implies not only a warranty at the election of the party, but a condition entire, (he breach of which gives, an entry into the whole; with this difference, however, that a voucher* to warranty of the part evicted, affirms the partition by the acceptance of a compensation, while^ an entry for the condition broken defeats it. If, then, the whole or any less estal.q of freehold be evicted, in all or any part of a particular purparty, the partition may be avoided in the whole whether it be of a manor that was entire, or of parcels that were several. As if A. being seised in fee of one acre in possession, and of another expectant on an estate for life, disseise the tenant for life and die; a partition of these two acres between his two daughters, will be avoided by the entry of the disseise. Viner, Partition, 2 pl. 5, 6; and the same law is laid down 1 Inst. 174. So it is said that one parcener cannot enter into her part again without the consent of the other, yet if a stranger enter into lief purparty by an older title, she may enter with the other and compel her to make a new partition. Bro. Par. pl. 34. Again, after eviction of an estate of freehold from a parcener who has a bad title as to the. whole or a part, she may enter and avoid the partition as to the whole or a part. Co. Lit. 208: and the same law was held in Bustard’s case, 4 Rep. 121, b, on the authority of 15 E. 4, 3, and 42 Ass. 2 2; and the principle of the Earl of Pembroke’s case was affirmed while the opinion of Cavendish, that partition shall remain,though an estate for life or in-tail were evicted, was denied. Such, then, being the rule, and ihe party entitled to enter being already in possession, an entry to give her the benefit of the condition, was unnecessary; as was held in Hamilton v. Elliott, 5 Serg. & Rawle, 375, where the doctrine on the subject was particularly examined. By the eviction of part of the purparty allotted to Garber’s heirs, therefore, the parties were remitted to their original rights; and these were not varied by their action on the covenant of Grant, from whom the original tenants derived the estate; inasmuch as recourse to that, was entirely consistent with the original tenancy.

In respect to another point in the cause, the court charged, that if the defendant’s husband came iqto possession under his father, (one, of tho original tenants in common,) she would be bound to deliver the possession to the plaintiffs, who are grantees of the father’s reversion. But she also, -was a child of one of the original co-tenants, and in the absence of other proof, there is a presumption that she and her husband came in under both. On the death of her father, then, to what did she succeed? Not only to a portion of his estate, but to his character of landlord, in which, as she could not surrender the possession to herself, she was entitled to retain it as an accessory of her newly acquired ownership, at least so far as was consistent with the nature of her estate, and the concomitant rights of her co-tenants. The parties, then, stand in point of right as if no partition had been made or under-tenancy created, each being entitled to possession in common with the rest according to the quantum of his estate.

Judgment reversed and a venire de novo awarded,  