
    THROCKMORTON OBERT v. PETER OBERT ET AL.
    1. On bill for partition, injunction granted, restraining the party in possession from committing waste by cutting timber.
    2. If the title of the complainant in a hill for partition is denied, the court may retain the bill to give him an opportunity to try his title at law.
    3. An equitable partition may be made so as to assign a portion of the land on which improvements have been made to him who made them, and if he has cut off the timber from a part of the land adjoining the part improved, the court may direct that the land from which the timber has been cut be valued as it was with the timber on it and included in tbe assignment to him.
    4. In special cases, one tenant in common may, on the application of the other, be enjoined from committing waste, but the jurisdiction is sparingly exercised.
    5. On bill for partition, by a tenant in common owning a twentieth part, an injunction was granted against the tenant in common in possession, restraining him from cutting timber. His answer showed that he was owner of eight-twentieths ; that he had made improvements to the amount of $2000; and that he only intended to cut the wood and timber from two acres near the barn, which he had commenced doing when the injunction was served; aw* he denied all intention to commit waste. The injunction was dissolved.
    The bill is for the partition of a farm of two hundred acres, of which it claims that George Obert, deceased, died seized, among the heirs-at-law of the said decedent; and for an injunction, restraining Peter Obert, who is in possession, from cutting wood and timber. The complainant, Throckmorton Obert, is one of five children of a son of the decedent, who died in the lifetime of the decedent; and the decedent left four children him surviving, viz», Peter Obert, Paul Obert, Nancy Obert and George Obert.
    The bill states that the decedent died in March, 1820, and that the farm descended as follows: one-fifth to each of the said children, and one-fifth to the complainant and his brothers and sisters, as the heirs-at-law of the deceased son, John Obert; that after the death of his grandfather, the complainant’s brother George died, whereby his interest was increased to one-twentieth of the farm. That Peter Obert possessed himself of the whole, and claimed to hold it all adversely to the other heirs. That the complainant brought ejectment for his share, and that one Mahlon Hammell, a tenant of Peter, was admitted a defendant in that suit; that the said Hammell set up, iu defence, a holding under Peter, and a deed from D. Smith and wife to Peter, dated June 5th, 1822, in consideration of $500, and a deed from Peter, as administrator of the said George Obert, deceased, to Smith, dated June 4th, 1822, for $500, purporting to have been made in pursuance of an order of the Orphans’ Court of Middlesex county, to sell lands for the payment of debts. That a verdict was rendered for the plaintiff in the ejectment, on which judgment was entered in February, 1843; and that, by writ of possession, the complainant was put in legal possession of his twentieth part undivided.
    That, during the ejectment, his sister Jane and her husband conveyed her twentieth to the complainant, and his aunt Nancy conveyed her fifth to him; and Paul Obert, as he is informed and believes, conveyed his fifth to the defendant Peter, so that the complainant now owns six-twentieths, the defendant Peter eight-twentieths; George Obert, son of the decedent, four-twentieths ; Nancy, sister of the complainant, and her husband, Samuel Magie, one-twentieth; and Susan, a sister of the complainant, and her husband, Stephen Verity, one-twentieth. That William Simpson claims, through the defendant Peter, some interest in the farm.
    The bill then charges that the personal estate of the decedent was sufficient to pay his debts; that the deed from the defendant Peter, as administrator, to Smith, and all the proceedings previous to the sale, were fraudulent and void; and that Smith was an irresponsible person, hired by Peter to bid off the property at the administrators’ sale and convey it to Peter. That Peter has refused to concur in making a partition, and was, at the filing of the bill, either by himself or in connection with Simpson, felling and carting off the wood and timber, and disposing of it to his own use, and was committing great waste and other irreparable injury and mischief to the premises.
    The bill prays an account of the wood cut, and a partition, and an injunction against cutting and carting off the wood and timber, and from committing any other waste; and that the title of the complainant, having been settled at law, may be confirmed and quieted ; and that proper conveyances may be made. And that in case the court shall deem it necessary to stay the general partition until the titles may be settled as between said parties and claimants, then that the share of the complainant, or at least his twentieth séttled in said ejectment, may be now divided off, without waiting for the settlement of all or any of the questions that may arise between the other eo-tenants.
    On a petition presented to the Chancellor before the filing of the bill, saying that the complainant had not time for the proper drafting of the bill, and stating the general facts contained in the bill, and that neither Peter nor Simpson, as the petitioner was informed and believed, was able to respond in damages, both being insolvent and bankrupt, an injunction was granted February 7th, 1844, enjoining Peter and Simpson, their workmen, &e., from cutting down or destroying the timber or other trees growing on the premises, or any part thereof, and from taking any wood or timber lying thereon, or any part thereof, and from doing further waste.
    The separate answer of Peter Obert, filed July 11th, 1844, admits that he administered ; states that the personalty was insufficient to pay the debts, and that the proceedings preparatory to a sale of the lands were all just and bona fide. States that on the 3d June, 1822, he sold the farm to Smith for $5L0, without any secret or other agreement that Smith should buy in the same for him. That at the sale the farm stood tor a long time on the bid of James Dunham of $300. That he took extraordinary pains to induce bidding; that he urged Smith, among others, to buy, telling him and them that the property was worth more ; and that, finally, when all other inducements seemed to fail, he told Smith he need not run any risk, and that if he should buy the farm at less than $800, and should become tired of his bargain, he, the defendant, would take it off his hands; and that the farm, after all others had ceased to bid, was struck off to Smith for $500, no one bidding more. That on the 4th June, 1822, he conveyed to Smith in fee, and not on any secret or other trust or confidence that Smith should hold for him, the defendant; that Smith bought bona fide, and with lawful and just right to retain it. That Smith did repent, and apprehended trouble from the second wife, the widow of the decedent, and proposed to him, Peter, to convey to him, for the same sum, but he denies that Smith was under any obligation— moral, legal, secret or otherwise — to convey to him; and that on June 5th Smith conveyed to him; and he submits that in this there is nothing repugnant to law or equity. He states the principal vouchers showing the debts of the decedent, and that he is unable to produce the other vouchers; that all the vouchers were delivered to the surrogate, to enable him to state the administration account, and that very few, if any of them, other than those he has set out, were ever returned to him ; and that he knows not what has become of them. That the lands of which the decedent died seized, were in detached pieces, and but a small portion of them was enclosed by fence of any sort. That some of' them were scarcely worth enclosing, the wood having been cut off and wasted, and the land, in general, not being arable. That after he bought from Smith, he borrowed mouey from Ann Van Beuren, and .gave his bond for it, and a mortgage on the premises, describing them as in the administrator’s deed to Smith, and in the deed from Smith to him. That almost immediately thereafter several persons (naming them) claimed different portions of the land included in the mortgage as theirs, aud as not belonging to the estate of*the decedent. The claimants and portions so claimed are as follows:
    David Freeman.......... .............................. 8j40 acres.
    J. S. Vanarsdalen.. ... ..............!............ 7¿ “
    Henry Obert........................................... 85]% “
    
    Heirs of Robinson Thomas......................... 14 “
    
    That on a careful survey and examination, it was found that these several portions belonged to the claimants, respectively, and were no part of the estate of the decedent. That on the 10th May, 1835, he bought the portion owned by Freeman for $45, and it was conveyed to him by Freeman and wife, by deed of that date-; that on the 15th December, 1829, he bought the portion owned by Vanarsdalen, for $50, and it was conveyed to him by Vanarsdalen, by deed of that date; that on the 20th April, 1830, he bought the portion owned by Henry Obert, and it was conveyed to him by Obert’s attorney, thereunto lawfully authorized, by deed of that date, for $116; and that he made a verbal contract with the heirs of Robinson Thomas, for their portion, but has not yet been able to obtain a deed therefor. That, after deducting these portions, the farm contains but about 120 acres, being all the lands of which the decedent died seized, except certain lots (describing them) not brought in question by the bill.
    That on the 15th of February, 1834, he, by deed, for a valuable consideration, conveyed to Lewis Slover about 70 acres of the premises in the bill mentioned, and that Slover took possession, and built a dwélling-house, and made divers improvements thereon, and resided there; and that the same has been since, by several mesne conveyances, conveyed to William Simpson; and that Simpson is now the owner of it, and has owned it since February, 1839.
    He says that, in March, 1837, he demised to one George Hammell a part of the premises mentioned in the bill (describing it), containing about 60 acres, and that said Hammell was never in possession of any other of the real estate of the decedent, George Obert, since the death of said Obert.
    He admits that, in December, 1842, the complainant obtained a verdict in ejectment for a twentieth part of the lands of which Hamccell was in possession under the demise aforesaid, and that judgment was entered on the verdict; but he insists that the verdict was unjust, and founded, in a great measure, on false and garbled testimony, and a suppression of the truth; and that the verdict and judgment cannot be- conclusive on him in equity; that the complainant has thought fit to give to a court of equity, by his bill, cognizance of the whole matter, and that he cannot recover in this court contrary to equity.
    That Ann Van Beuren died in September, 1839, and that her administrator foreclosed the mortgage given by him, Peter, to her; and that, on the 19th of October, 1842, a final decree for sale was made; and that the sheriff, by virtue of a fi. fa., issued under that decree, sold the premises to the said William Simpson, and conveyed the same to him, by deed dated May 19th, 1843, for $495, being the whole of the premises mentioned in the complainant’s bill.
    That Simpson resides in New York, and is universally believed to be a man of large estate, real and personal; and that at no' time has he been suspected or believed to be a bankrupt, or insolvent. That he, the defendant Peter, is in possession of the premises, by the permission of Simpson, and at his will; that Simpson is his son-in-law, and that he has charge of the premises for Simpson. That when he bought the premises from Smith, and took possession, the buildings were in a ruinous condition — the house ready to fall down, being propped up by poles and stakes ; the fences destroyed, and everything gone to wreck. That the defendant Peter built a new house, barn, and outhouses, erected fences, and bought lime for the land, and that his expenses, exclusive of his labor, exceeded $2000.
    He denies any waste of the premises, or of the wood or timber growing thereon, or any threat to commit waste. He says that, to pay a tax of eight dollars, buy manure for the land, and for fencing stuff, he concluded to clear a small piece of about two acres, and that, accordingly, in the early part of the winter before, he engaged three men to cut wood on the said two-acre strip, near the barn. That wood, not exceeding eight or ten cords, was cut and carried away, and that about three-quarters of a cord of the cut wood now remains on the ground; that he intended to clear the whole of said two acres, when the injunction was served on him, and that good husbandry and convenience required said strip to be cut off.
    He says that the whole real estate was insufficient to pay the debts, and that there still remains due to him, $1131.95, with interest from July, 1825,, from the estate of the decedent, and he annexes to his answer a copy of his final account, allowed by the Orphans2 Court, showing that the said sum is still due-him. He denies that Smith was, in any shape, an agent for him in the purchase, or that Smith bought under any device, arrangement, or understanding with him, and denies that the Supreme Court ever adjudged the deed from him, as administrator, to Smith, to be void, and denies that he was ever made a defendant in any actiou of ejectment brought by the complainant, for the recovery of the premises, or any part thereof.
    The answer of William Simpson states, among other things not material to our present purpose, that in February, 1839, he bought a tract of 70 acres (describing it), from Peter Obert, who was in possession thereof, as owner in fee, he having bought it from Lewis Slover ; and that, for a valuable consideration paid by him to said Obert, Obert conveyed to him the said 70 acres. That said tract is a part of the land mentioned in the complainant’s bill. That when he so bought, he had no knowledge, belief or suspicion of the complainant’s claim thereto, or to any part thereof; but perceiving and understanding that the premises had been sold under an order of the Orphans’ Court, he believed that all the interest of George Obert, deceased, passed to the purchaser, and was, by mesne conveyances, transmitted to and vested in Peter Obert, son of George Obert, deceased, and he relied on the public and judicial acts of the Orphans’ Court. He denies all knowledge of any fraud in the accounts of the administrator or in the order for sale. States his purchase at the sheriff’s sale on the foreclosure of the Van Beuren mortgage, and that the said mortgage and decree included the lands he had bought of Peter Obert; and that to protect himself, he bought them a( the sheriff’s sale for $495, and paid the money to the sheriff; that the sheriff', by deed of May 19th, 1843, comveyed the said premises to him in fee; that the lands so conveyed to him by the sheriff, include all the lands mentioned in the bill. That he does not know whether Magie and wife, or Nancy Obert, made the conveyances to the complainant of their shares, as stated in the bill, but insists that if they did, the conveyances are void as against him. Says that neither Nancy nor Magie and wife have been, either actually or constructively, in possession since June, 1822; and that the premises have been held since that time by divers persons adversely to them. That the defendant, Peter Obert, is now in possession by his permission and at his will. He asserts the right to cut, but denies that any w.aste has been committed ; says he put the premises in the possession and eare of the defendant, Peter Obert, and instructed him to use the same as good husbandry requires; and that he is of opinion that the strip of woodland near the barn, of about two acres, on which alone some wood has been cat, ought to be cleared.
    He says that it appears from the bill itself, that the complainant has not exhibited his claim to the lands within twenty years next after his title or cause of action, if he had any, accrued ; and that being an innocent purchaser for a valuable consideration, and without notice of such dormant or concealed claim, he pleads the statute of limitations in bar. He denies his bankruptcy or insolvency, and says he has a clear income of more than sufficient to support his family, from unencumbered real estate.
    On the 24th December, 1845, a petition on the part of the defendants was presented to the court, stating the filing of the bill of the complainant, and the petition for an injunction, and the answers of the defendants; and that in the term of October, 1844, the defendants, by their counsel, moved before the late Chancellor that the injunction be dissolved, for reasons stated in the petition; and that the argument of the motion was had in that term ; and that the Chancellor left Trenton without announcing any decision from the bench. That neither the defendants nor their counsel received information of any decision of the Chancellor till about three months thereafter, when their counsel discovered in the chancery clerk’s office a writing, signed by the Chancellor, as follows': “ Let the injunction be modified, so as to limit it to timber not necessary for the ordinary uses of the farm; ” dated October 28th, 1844.
    The petition further states that no more formal order was prepared for the signature of the late Chancellor. That if the said writing is to be considered as an order of the court, the petitioners consider it erroneous. That the injunction has not been modified, but remains in its original shape. It prays a re-hearing, or else that. the court will entertain, ah origine, the motion to dissolve the injunction.
    A certificate is annexed to the petition, signed by two counsel, saying that they are of opinion that a re-hearing ought to be granted as prayed in the petition. An order was thereupon made that a motion to dissolve the injunction be brought to argument on ten days’ notice.
    The motion was argued at the March Term, 1846.
    
      W. Scott, for the motion»
    
      R. S. Field, contra
    
   The Chancellor.

The combination of facts, as gathered 0" m the bill and answers, upon which, as it seems to me, the present motion must be decided, are as follows: George Obert died, the bill says, in March, 1820 — the answer says in 1821 — ■ intestate, seized of a farm of 120 acres, leaving lour children him surviving, and five granchildren, the children of a son who died in his lifetime. The complainant is one of the said five grandchildren, and the defendant Peter G. Obert is another of the said grandchildren. After the death of the intestate, one of the five granchildren died, unmarried, and without issue, by which the shares of the complainant and the defendant Peter, respectively, were increased to a twentieth ; and the bill states that, by purchases of other shares, the complainant became entitled to six-twentieths, the defendant Peter to eight-twentieths, and that George Obert is entitled to four-twentieths, and each of two other granchildren, to one-twentieth. The defendant Peter administered, and, on the 4th of June, 1822, by order of the Orphans’ Court of Middlesex, sold the farm, for the payment of debts, to D. Smith. On the 5th of June, 1822, Smith conveyed the farm to the defendant Peter. On the 15th of February, 1834, Peter conveyed 70 acres of the farm to one Slover, who took possession thereof, and built a dwelling-house and made other improvements thereon ; and this tract of 70 acres, by mesne conveyances from Slover, became vested in the defendant Simpson, in February, 1839. Previous to 1835 — the precise time when does not appear —the defendant Peter mortgaged the farm to Ann Van Beuren. On the 19th of October, 1842, a final decree for the sale of the premises under this mortgage, was made, and, at the sheriff’s sale thereof, May 19th, 1843, the premises were bought by Simpson, for §5495. In March, 1837, Peter rented 60 acres to George Hammell, and the complainant in this bill brought an ejectment against Hammell. Hammell appeared and defended. The consent rules were exchanged September, 1837. in December, 1842, a verdict for a twentieth part was obtained against Hammell in the said ejectment, and in February, 1843, judgment was entered on the verdict, and a writ of possession was executed. The bill says that, during the ejectment, the complainant bought two other shares, but it does not say at what time during the ejectment. The bill was filed, and the injunction granted in February, 1844.

The defendant Simpson says he is an innocent purchaser, for a valuable consideration, and without notice of any such dormant claim as is set up by the complainant. The defendant Peter went into possession of the whole farm, on getting his deed from Smith, and continued in possession of the whole, claiming title, till he sold the 70 acres to Slover, in 1834, and that has been held adversely ever since; and Peter remained in possession of the residue, by himself or his tenant, claiming adversely, till Simpson bought at the sheriff’s sale, under the Van Beuren mortgage, in 1843, which mortgage was given by Peter, and the title, as claimed adversely against the heirs, is now all in Simpson, and Peter occupies under him.

The first question is, is the title of the complainant to an interest in the whole farm, the premises of which he seeks partition, sufficiently established to enable this court to proceed with the partition, or to authorise the continuance of the injunction ? The complainant in this suit, by ejectment against a tenant of 60 acres under Peter, recovered a judgment for a twentieth part of the 60 acres. The 70 acres had been sold by Peter, in 1834 j no ejectment has been brought for that; and about twenty-two years have elapsed since the deed from Smith to Peter. If the verdict and judgment against Peter’s tenant of the 60 acres, be equivalent to a verdict and judgment against Peter, it cannot settle the title as to the 70 acres. For aught that appears, Slover was a purchaser of the 70 acres, for a valuable consideration, without notice, and, at any rate, Simpson, who holds by mesne conveyances from Slover, says, in his answer, that he is such a purchaser.

Next, what amount of interest, in the complainant, in the 60 acres, can be at all considered as settled by the ejectment against Peter’s tenant ? The bill says that the complainant, during the ejectment, bought other shares, and, at the time of filing the bill, was entitled to six-twentieths. But those shares have been held adversely since 1822, and are still so held. The ejectment was commenced as early as 1837, within about fifteen years from the commencement of the adverse possession, and cannot establish the complainant’s title in February, 1844, the time of filing the bill, to any interest in the 60 acres, more than the twentieth part for which the verdict and judgment were renderfid. Besides, the bill does not say at what time during the ejectment the complainant bought other shares — it may have been after the lapse of twenty years.

The only title, then, in the complainant, which can be considered at all established by the ejectment, is to a twentieth part of sixty acres of the premises of which he seeks partition. The interest of Peter, or those claiming under him, is eight-twentieths. If, then, the deed from Smith to Peter, and all the subsequent conveyances, could be set aside, we should have the case of one tenant in common owning a twentieth, asking and obtaining au injunction against the owner of eight-twentieths, in possession of the whole or of nineteen-twentieths, from cutting any wood or timber during the pendency of a suit in this court for a partition instituted by the owner of the other twentieth.

But, under the case made by the bill and answer, the question whether such an injunction should be continued, is still a more serious question. In (he first place, ii appears by the answer, that the dwelling-house and other buildings on the premises were in a ruinous condition when Peter got die title claimed by him, and entered into possession under it; and that he put new buildings on the premises, and improved the lands by manure, at an expense, altogether, of $2000, besides his own labor. It certainly could not be expected, under these circumstances, that the injunction, as prayed by the bill and granted, restraining Peter from cutting any wood or timber, could be continued. The Chancellor, when the motion was made, in October, 1844, to dissolve the injunction, modified it by limiting it so as to restrain Peter from cutting timber not necessary for the ordinary use of the farm. This was eighteen months ago. No progress has since been made in the partition suit; and the motion now is, to dissolve the injunction entirely.

The defendants say that they intended to cut the wood and timber from two acres near the barn, and had commenced doing so when the injunction was served, and deny that this would be waste, and deny all intention to commit waste. Would this be an irreparable injury to the complainant, or tend to prevent his getting his full twentieth, if the partition suit proceeds? An equitable partition may be made so as to assign that portion of the land on which improvements have been made to the person who made them. 1 Green’s Ch. R. 341. And I see no reason why the court could not direct that, in making the partition, the value of these two acres proposed to be cut off should be estimated as it was with the wood and timber on it, as well as that the land occupied by the new buildings should be valued as it was with the old buildings on it.

In Elmer’s Dig. 383, § 19, it is provided that, on a division in any of the cases under the statutes for partition, if any tenant in common, or person claiming under him, hath, before division, cut off any timber, or committed any waste or destruction on the premises, the commissioners shall estimate the damage, and divide the premises so that such tenant shall be charged with it, and have a share proportionably less in value.

There are, no doubt, special cases in which an injunction will be granted between tenants in common -to stay waste, but the cases are rare, and the jurisdiction is sparingly exercised. In 3 Bro. Ch. Rep. 621, the Chancellor-said he had no idea of an injunction to stay waste where the person applying for it is tenant in common with the person in possession, who has therefore an equal title to the possession with him ; but, it appearing in that case, that they were only equitable tenants in common, the legal estate being in a trustee; and that therefore the person committing the waste had ho title to the possession; and it being sworn that the party cutting was insolvent, the Chancellor granted the injunction. It may be remarked here, that the charges of insolvency made in the bill in this case, are fully denied by the answers.

In Hale v. Thomas, 7 Ves. 589, Ld. Eldon said he never knew of an instance of an application to stay Waste by one tenant in common against another; that a case of malicious destruction might be a ground j and, in Tworl v. Tworl, 16 Ves. 128, the same Chancellor said that his experience did not furnish him with a single instance of an injunction between tenants in common; and that he had refused injunctions between tenants in common, except in special cases. The case before him, he said, was a special case’, one of the tenants in common having become the occupying tenant of the other, and having by that contract engaged, as to one moiety, to treat the land as an occupying tenant should treat it; and on this ground he granted the injunction ; stating expressly, in the order, that the defendant was occupying tenant to the plaintiff; and restraining him from committing any waste upon the premises which he held as such occupying tenant. This, he said, was a safe principle, and would, by its necessary operation, prevent the defendant from committing any waste. This ground, and that of destruction or insolvency, seem to be the special grounds on which the jurisdiction has been exerted. This last case was on a bill for partition, and motion for injunction.

The case of Hawley v. Clowes, 2 Johns. Ch. R. 122, which was a bill for partition and injunction to stay waste, was, probably, the case or the authority on which the Chancellor, when a motion to dissolve was made before him eighteen months ago, retained the injunction in part, limiting it as before mentioned. In that case, the plaintiff and defendant owned the land as tenants in common, in equal undivided moieties; and there was no dispute about the title; and a motion was made to dissolve without answer, on the ground that one tenant in common cannot have an injunction against another. The bill charged that the defendant was cutting down the timber, and threatening to persevere, and was sworn to j and there was no answer. The Chancellor modified the injunction, confining it to timber not wanted for the necessary use of the farm. He said that the authorities admitted that an injunction between tenants in common could be granted in special cases, as where the defendant was sworn to be insolvent, or where the waste was destructive to the estate, and not within the usual and legitimate exercise of enjoyment; and that he thought it fit that, pending a suit for partition, the tenant in common in possession should not be permitted to strip the land of its timber. I think this principle of Chancellor Kent a sáfe one, but I cannot think the ease we are considering is, under the answers filed, within the principle.

It is proper to forbear from any remarks on the question oi title.

Let the injunction be dissolved.

Cited in Hall v. Piddock, 6 C. E. Cr. 314; Coffin v. Loper, 10 C. E. G. 444; Polhemus v. Empson, 12 C. E. Gr. 195.  