
    Lockwood and others v. Mills, Hoadly, and others.
    Parties receiving separate allotments in the same tract of'land are not tenants-in common, so as to claim partition of a surplus.
    This was a bill in chancery, adjourned for decision here, upon "bill and answers from the county of Huron. The object of the bill was to obtain the aid of the court to correct a partition made by the directors of the Fire-Land Company, of certain lands amongst the complainants and defendants. The case claimed by the complainants follows:
    
      E. Lockwood, and S. and H. St. John, with others, upon account of their claims, and John Cannon, upon account of part of his claim, had section 1, in township 1, range 24, set apart to them, and to-equalize the value there was annexed to it part of a fractional township, in'these words: “ To which section is annexed one thousand seven hundred and eighty-three acres off the east end of the-fraction of two thousand seven hundred and eighty-three, lying between the north line of township 6, in the 23d range, and San-dusky Bay, according to the mode of partition adopted by the directors.”
    John Cannon had set to him upon account of other part of his-claim, section 4, in township 1, range 24, with an annexation in these- words: “ To which section is annexed five hundred acres of land, it being part of the fraction of two thousand seven hundred and eighty-three acres, lying between the north line of township number 6, in the 23d range, and is to be taken next west of the annexation to section No. 1, in this town, leaving the remainder of said fraction, which has been already annexed to section 4, township 1, range 23.” This last-named section was set to other parties, and the annexation to it, in the book of classifications kept by the directors, ^preceded those before stated, and is in these words: “ To which section is annexed five hundred acres of land lying on the west end of the fraction of two thousand seven hundred and eighty-three acres, lying between the_ north line of township 6, in the 23d range, and Sandusky Bay, according to the mode of partition adopted by the directors.” The complainants claimed as heirs of Lockwood and the St. Johns, and by intermarriage as part of the heirs of Cannon. The defendants claimed as purchasers of the rights of the other heirs of Cannon.
    The fraction described as containing two thousand seven hundred and eighty-three acres, out of which the three annexations were made, contained, in fact, about three thousand eight hundred acres. The object of the bill was to obtain such partition as should assign to the annexation of one thousand seven hundred and eighty-three acres what was claimed to be its proportion of this surplus land.
    The cause was argued by Webb, for complainants;
    And by T. D. Parrish and J. Mills, for defendants.
    
      For the complainants, it was contended that the first annexation, being located on the west end of the fraction, the second on the east end, and the third and last between the other two, the complainants should have their portion of the surplus assigned immediately west of the one thousand seven hundred and eighty-three acres already set off to them. It was also contended that the apportionment being evidently made under a mistake as to the quantity in the fraction, that mistake ought to be corrected, and that a court of equity was competent to make such correction.
    For the defendants, it was contended that each of the sections in question, with its annexation, was assigned in severalty to the different owners. That Cannon, though tenant in common with Lockwood and St. Johns, in section 1, and its annexation, was not tenant in common with them of section 4, or of its annexation, and that the separate annexations were precisely located as to place and the quantity definitely specified; consequently that section 1 could not be entitled to more than the specified number of acres in the fraction described. That section 4, in the township 4, could only be entitled to five hundred and eighty acres, and that the owners of these having obtained their quantity, had no further claims.
    It was contended, also, that the persons interested in the annexation to section 4, in township 1, range 24, who were some of *them purchasers in fee in possession, and the persons interested in the annexation to section 4, in township 1, range 23, ought to be made parties before any decree could "be pronounced, because a decree for the complainant would materially affect their rights.
   By the Court :

We are clearly of opinion that there is no character of tenancy in common between the owners of section 1, township 1, range 24, .and section 4, in the same town and range, and.their respective annexations out of the fraction supposed to contain two thousand •seven hundred and eighty-three acres. These allotments were made by the directors of the company for the express purpose of vesting in the respective claimants distinct and separate rights. There is no reason that can be urged to make them tenants in •common of the annexations which would not equally apply to the principal sections allotted to each; and this has never been pretended.

The original division of the fraction, from which the annexations were made, had no reference to any joint or connected interest between those amongst whom it was divided, and the mere circumstance that their separate interests were thus brought into the same vicinity, can give no joint or common character to thdse interests. The annexation, by acres, shows that so many acres were deemed sufficient to equalize the allotments made to each, and we conceive that the actual contents of the fraction can neither enlarge nor diminish the quantity annexed in this case, because the claim of each to his separate annexation was distinct from and independent of the other. If there had been a deficiency, each party entitled to the annexation must have been satisfied in the order of his claim, and the one who in point of law was last, must have been thrown upon the company for compensation or bear the 'loss.

Independent of this, we are of opinion that those who claim the annexation to section 4, of township 1, range 23, are directly interested in the decision to be made, and ought to be parties to the cause. If the other ground were not sufficient, we should be compelled to dismiss the bill for want of proper parties.

Dili dismissed on the merits.  