
    Sawyers et als. vs. Cator et als.
    . In the case of partition of real estate, held in joint tenancy, or tenancy in common, there is an implied warranty between the parties to such partition, by which they have the mutual right, in case of an .eviction by paramount title, to have compensa- • tion from each other for loss sustained; and this right exists against alienees, though not in thoir favor; and the remedy is by bill in chancery, either by setting aside the partition as being founded in mistake, if it can be done without injustice, and if not, then by a decree of pecuniary contribution.
    John White died intestate in 1824, in the county of Williamson, leaving a widow, Sally White and heirs, to wit, Sally Sawyers, Polly Burnham and Eliza Phillips, daughters, John PI. White and John M. White, the representative of deceased sons of the intestate. Pie died seised and possessed, amongst other property, of a tract of land, lying in the county of Williamson, containing five hundred and sixty-one acres. In 1826 the widow and heirs of said White filed their bill exparte, in the circuit court of Williamson county, which prayed the court to set apart and allot dower to the widow, and to divide the balance of the tract amongst the heirs of said White, deceased. On the 11th of August, 1827, the commissioners appointed to lay off dower and make partition reported, and on the 29th of August, 1828, the circuit court confirmed the report of the commissioners, allowing dower to the widow, and assigning and setting apart by metes and bounds, one-fourth to Mrs. Sawyers, one-fourth to Mrs. Burnham, one-fourth to John M. White, and one-eighth, to John H. White and Eliza Phillips, each. This decree vests the title to the land assigned as above 'stated, by metes and bounds, in each respectively, and their heirs forever.
    On the 27th day of March, 1827, Hardy Koen filed a bill against the widow and heirs of White, deceased, claiming one-half of the tract of land, which had been divided. This bill stated, that Joshua Campbell had purchased one-half of the tract of White in his lifetime, and that White had executed to Campbell a bond for title thereto, and that Campbell’s heirs had sold their undivided interest therein to Daniel Koen, who •died, leaving Hardy Koen his heir. On the 29th January, 1833, John II. White sold the land alloted to him.to L. Cator for the sum of $525, and conveyed with warranty. At the time of this conveyance Cator was informed of the existence of Koen’s bill. On the 5th of April, 1833, Koen filed an amended bill, making' Joshua Campbell’s heirs parties to his bill; and he prosecuted it to a recovery; and by decree commissioners were appointed, who allotted to him, by metes and .bounds, two hundred and twenty-three acres, which took one hundred and seven acres of the land assigned as dower, valued at $889; thirty-five acres of the part allotted to Polly Burn-ham, valued at $409; seven acres of the part possessed by L. Cator, valued at tweüty-one dollars, and one hundred and forty-four acres, belonging to Sawyers and wife, valued at $1545, making an aggregate value laid off to Koen of $2886. Koen also recovered rents and costs, amounting to #839, which sum was paid by Burnham and Sawyers in equal portions.
    Phillips and wife, Sawyer's and wife, and Polly Burnham, filed their bill in the chancery court at Franklin, in February, 1844, against John H. White, John M. White and L. Cator, to have contribution for the loss of land, and for reimbursement of rents and costs, or for a re-partition of the said land, including the dower; the widow having in the mean time died. A decree pro confesso was taken as to John M. White, and the others answered, and the case was set for hearing on the„ pleadings and proofs, when the following decree was made, which exhibits the views of the chancellor, both as to the facts and the law.
    DECREE.
    “Be it remembered that this cause came on to be heard before the Hon. Terry H. Cahal, chancellor on this 2d June, 1846, upon the bill, amended bill, answers, replications, exhibits and proofs, the orders in the cause in the presence of counsel on both sides, and it appearing to the court that John, White in the year 1824, departed this-life, intestate, seized and possessed of a tract of land containing — acres more or less described in the pleadings, which descended to his children, Polly Burnham, Sally Sawyers, and his grand-son, John M. White, only child of his deceased son, Samuel White, and his grand-children, Eliza Phillips and John H. White, only children of his deceased son, James White, subject to a dower estate of his widow, Sally White. That in 1828, dower in said land was set off to said widow, amounting to — acres, but no partition of the part so set off as dower was made among said heirs of said John, deceased; at the same time, partition of the remainder of said tract of land was made among said heirs, viz: one fourth in value to each, to wit, to Polly, Sally, and John M.; and one-fourth, to said Eliza and John, and partition was made between them as shown in the pleadings. It further appeared to the court that after the commencement of the suit of Hardy Koen, hereinafter named, the. following purchases with full notice of the suit by the purchasers were made, viz: defendant Levin Cator purchased of John H. White, the land allottedto him in said partition, and complainant Phillips purchased of the said John M. White, and John H.. White, their interests in the land covered by said dower, and the said William Sawyers purchased the land allotted in said partition to John M. White at.execution sale by virtue of the levy of an execution from the supreme court at Nashville in the case of Koen against White’s heirs, hereinafter referred to at the price of .$ — . It further appeared that Hardy Koen instituted a suit in chancery against said widow and heirs of John White, deceased, by which he claimed against them an undivided half of the whole of said tract of land, and in said suit he recover-ered his claim and costs, and some of said heirs incurred considerable costs; that the decree was made by said supreme court in January, 1839, and by said decree partition of said tract was made between said Koen and said heirs, and Koen put in possession of his part. That the part set off to Koen covered a part of said dower land, and part of the lots of said Sally Sawyers,-Polly Burnham and John M. White, but no part of the lots of Eliza Phillips or of John H. White or Levin Cator’s was taken by it. It also appeared that said Koen in said suit recovered against said heirs $1177 40 for back rents on his part, from which was deducted $392 for improvements put on the parts of the lots taken by the owners of the lots after the partition among said heirs or were valued in said ‘partition; and it further appeared that all of said rents, costs &c. have been paid by said sale of said lot of John M. White, and by Polly Burnham and William Sawyers, but in what proportion does not appear. It further appeared that said John H. White died insolvent. Therefore the court is of opinion and doth declare decree that said Sally Sawyers, Polly Burnham and John M. White or William Sawyers, his assignee, are entitled in equity to have contribution from the said Phillips and wife, and Phillips as assignee of John H. White and John M. White of their interests in said dower part, and said Levin Cator, as-signee of John H. White’s lot, for the land lost out of their lots and for the rents, costs &c. and to make contribution among themselves so as to make equal the loss occasioned by said claim and suit of Koen among the heirs of John White, deceased, (or their assignees) according to their interests under said partition. It is also decreed that by said assignments to" Levin Cator, Lemuel Phillips and William Sawyers,, the obligation to make said contribution devolved on the assignees according to the value of the interests assigned, and it is decreed that there be a lien on the whole of said tract of land not taken by Koen to secure the contribution herein decreed. It is further decreed that in estimating the relative liability of Cator and Phillips as assignees of John H. White and Sawyers and Phillips as assignees of John M. White, the loss sustained in the interests in the dower so assigned be taken into consideration. It is further decreed by the court that the clerk take an account of the money paid towards the rents and costs recovered by Koen, and by whom, and of other costs (if any) paid and by whom. He will also ascertain and report the value of the improvements as allowed by the supreme court in the case of Koen vs. White’s heirs, and upon what parts of said land said improvements were. He will also ascertain and report how «much land was taken from the dower, and each, and whose lots and the respective value of the several parcels so taken, and the quantity and value of the. lots or parts of lots and said dower not taken by Koen, and that in said valuation it be assumed that the lots of said Polly, Sally and John M. were equal in value, and the shares of said John H. and Eliza were equal in value, and together equal to one of the other three shares, and that said valuations all be made as of the time of said partition amongst said heirs, and that he ascertain and report the sums to be paid or received by each, ascertaining the.persons who shall pay and receive in said contribution. It is further decreed that partition of the part of said dower not taken by Koen (it appearing that Sally White is dead) be made among said Sawyers and wife, Polly Burnham, and Phillips and wife, and in said partition that one fourth in- value be allotted to said Polly Burnham, one fourth to Phillips and wife, and three eighths to said Lemuel Phillips, and one eighth to said Phillips and wife.”
    A final decree was rendered on the incoming of the report, in conformity with, and in execution of the principle of the chancellor’s decree. From this decree Cator appealed.
    
      ■John Marshall, for complainant.
    On the question, whether after partition by decree of court, between tenants in common of land, if the share of one be lost, or apart of it, he shall be entitled to compensation from the other; and whether right to compensation extends as against'an assignee of such other; and if such right exists as against such assignee, is there a remedy in a court of equity. -
    The complainants insist, that the right to a new partition or to compensation exists as against the co-tenant and his as-signee, under the circumstances of this case; the proof shewing that the assignee (Cator) purchased with notice of, and subject to this burden. It is, however, insisted by complainants, that the assignee with or without notice is liable to make compensation at least, and that a bill in equity is a proper remedy.
    It will be observed that it is unnecessary, perhaps, to meet the position taken by the defendant, that because the remedy by writ de warrantia chartos, has become obsolete, that therefore, the right for which that writ was a remedy anciently, has ceased with that remedy. If this were the consequence, then a covenant of general warranty would give no right. — See Fitzherberts’ Natura Brevium, page 311. Now it may, perhaps, not- here be necessary to remark on the nature of those personal covenants, express or implied, which run with the land, and which have by the modern decisions, been substituted for the real covenants of the earlier cases. — See 4th Kent Commentaries, 1st vol., 457-460. — It may not,. however, be improper to remark, that the writ, de warrantw chartce, must be brought by the warrantee, his heir or his assignee against the warrantor or his heirs, either before or after the breach of the covenant, and the judgment was for other lands of like value, and the commencement of the suit bound the lands of the warrantor"or his heir, the heir holding the lands by descent. It is in these respects, this writ principally differs from actions on the personal covenants, under the recent decisions. But in no decision, or book in which, it is said that the remedy by the writ de warrantia charla is abandoned, has it been said, that a warrantor is not liable to his warrantee, that upon an exchange of land each is not bound to the other upon a defect of title, or upon partition that each of the owners or tenants in common is not bound to the others in case of eviction of a part;
    If the partition had been by deed with covenants of warranty &c., the question might assume a countenance somewhat different, but not differing so much as to affect the result, it is believed. The jurisdiction of a court of equity in that case would depend upon other considerations.
    The partition shown in the record in this case, is under a proceeding in equity; the common title, under which all the tenants claimed to every part of the land, never came in question. Nicely vs. Boyles, 4 Humphreys Rep. 177-8, Dacres vs. Gorges, 2 Simons & Stuart 454, 1 Cond. Eng. Ch. Cases 541.
    So that the loss of any part was a failure of consideration, or the allotment was a mistake, as to so much of the land, as the parties had no title to, either of which would give the court of equity jurisdiction; and upon this ground, not only the right, but the jurisdiction of the court of chancery is put in the case of Dacres vs. Gorges. 1 Eng. Ch. Cases 541, 2 S. & S. 454.
    Cator having full notice of the claim of Koen is bound to contribute, whether the relief is given on the ground of mistake, or failure of consideration, or on the ground of a warranty in the partition.
    As to the ground of warranty, he is liable on the authorities beyond controversy, and that with or without notice.
    It will be observed, that parceners are so (Jailed, because partition lies between them; Littleton, section 241; and that an incident of partition between them was a warranty on condition in law, that the one shall enter on the other, if evicted, as long as the privity between them exists. Little-ton, section 262. See Co. Lit. 173, b. And this though eviction be only of part of the property. Coke Littleton, page 173, br Littleton, section 262, and see more particularly, Coke Littleton 174, a, 2 Cruise Digest title 19, co-parcenery, section 23-24. These authorities are conclusive that there is a warranty in every partition whether by deed or by decree.
    By the statute 31 Henry 8th, chapter 1, joint tenants and tenants in common, may compel partition as parceners at common law, and by the 3d section of that statute it is expressly provided, that any of said joint tenants or tenants in common, may have aid of the others as is used between co-parceners after partition made by order of court. See All-natt on partition 161-167, in 5th Law Lib,
    This statute expressly recognises the liability of parceners to each other after partition, and puts joint tenants and tenants in common in the same condition.
    Is the assignee liable on this warranty? The law is clearly so laid down in Allnat on partition 155-167, in 5th Law Lib. 63-68.
    This being the case, that there is a warranty, and that the assignee is bound by it, has a court of equity jurisdiction to grant the relief?
    Unquestionably, whether the bill is. filed for a new partition, or for compensation for fhe loss, it is in substance, and in fact, a bill for partition, and a court of equity has jurisdiction; if the complainant under the circumstances, is entitled to the new partition, which is always discretionary with the court, there is an end of the question of jurisdiction.
    But if the court in its discretion, thinks that compensation shall be taken by complainant instead of the new partition, then the discretion of the court gives jurisdiction, as to the compensation, and although there were no discretion in the case and the complainant only entitled to compensation, the questions, being questions of boundaries, and of accounts complicated alxd intricate in their nature, it is a proper matter for equity jurisdiction.
    But with all due deference to the authorities cited from Littleton, Coke upon Littleton, Cruise, Allnat, &c., I am of opinion, that in this state, after partition by decree of court, in case of an eviction of one from his share or portion by a paramount title, he is entitled to contribution from the other on account of the loss, not, on the ground of an implied warranty, but on the ground of mistake and failure of consideration (if I may be allowed the latter expression,) and on the ground that the court decreeing the partition is bound ex débito justifies to see that no injustice shall be done by it, in the exercise of this peculiar jurisdiction. All suits for partition are equity suits. And if in case the equity is discovered too late for a partition, for a rehearing or for a bill of review, then the party having such equity, may file an original bill in the • chancery court and obtain relief, this court having general chancery jurisdiction, and the control of inferior jurisdictions in case the partition should have been decreed in another court.
    A decree of partition in this state is only one of the common assurances of the country, and this assurance is compulsory, and no inquiry is or can be made, in this proceeding, in relation to the common title of the parceners, or tenants in common. 4 Hum. 177. And the proceeding is an entire one and expresses the consideration of the titles to the shares held in severalty afterwards, and of course upon an eviction by one from his share, or a part of it, there is a total or partial failure of consideration, as the case may be, by such one as to his right in the other shares not lost, which the court decreeing the partition would not tolerate; equality accoi’ding to the interests of the parties being the only matter for adjudication before it.
    By the common law, lands held in coparcenary were subject to partition, and after partition, the parties were liable to each other in case of loss; and the statute of Henry 8, was passed to make it lawful to make partition of lands held by joint tenants and tenants in common, and that, after partition, they also should be liable to contribute to each other in case of a loss, as parceners were liable, and by the common law parce-ners had a right to a new partition, or compensation against each other, or vagainst the assignee in case of eviction, as before shown. Now it is my opinion that this right to contribution, is an equity, rather than a legal right under an implied' warranty of title, according to the modern and approved decisions on the subject.
    Previous to partition, if one tenant in common, enjoys the rents*, or converts the common property in part to his own use, whereby such part is lost to the other tenant, the losing tenant becomes entitled to an equity in the whole of the undivided common property, to make him equal with the other tenant, after charging the latter with what he had received. Coleman vs. Pin!card,2 Hum. 185-191, and authorities cited; and this gives a lien on the undivided property to the losing tenant.
    It is a universal principle, that tenants in common, after partition (which can be compelled) shall not be in a worse condition than before. 5 Law. Lib. 156-160, mar. p. So the same equities exist after as before, and of course entitled to re„lief, and that in a court of equity.
    The grounds of equity jurisdiction are perspicuously stated in 1st Story’s Equity, sec: 646-652; 654-655; 6565, (new edition,) 656c; 657 and 658. And the reasons for exercising the jurisdiction after partition, are much stronger than before, as there is a greater probability, that after partition', the tenants will make transfers of their portions, that they will enjoy unequal shares of the rents and profits, and put unequal improvements on their respective shares, and are more apt to improve too; and again, the precise land lost, its value, and the back rents paid, &c. constitute' additional and fruitful sources of difficulties, only to be adequately adjusted in a court of equity. Indeed, I consider a bill filed for relief, after partition, as a bill for partition, and compensation as an incident, which may or may not be decreed, as in cases of bills for specific performance &c. See I Com. Eng. chancery cases 543. Dacres vs. Gorges.
    
    Upon the right of Sawyers, Phillips &c. as assignees, see 1 Story Eq. sec. 656 c.
    
    The loss by one tenant of his interest, under the statute of limitation, it is true, gives him no right to contribution as against the other tenant, simply because the loss is his own fault, and this principle has no application to the case before the court. There was no joint undertaking in that case among the three purchasers, from Lacy; nor in the transaction was.there any connection between them, as to the consideration in the contract; directly the reverse is the situation of the parties here, both as to contract, and equities of the parties. v
    But it may be said, if I abandon the implied warranty, and claim an equity, I thereby release Cator, the assignee of John H. White’s portion, out of the dower. It is submitted that no such consequence follows. Indeed just the contrary follows. The suit of Koen was pending against John H. White, and the other heirs at the time Cator purchased from John H. White. Cator at the same time knew that the land of John’ White was partitioned, and what land was so partitioned, and that the land he was purchasing from John H. White, was his share in that partition, and that Koen had sued for the land. All this he knew actually, and he got John H. White's share at a very inadequate price, on account of the condition of the title, and probably took the titles subject to the burden of Keen’s claim, by agreement with John H. White.
    Then Cator, with full notice of the condition of the title,-and with full notice of the equities of the other tenants dependant on Koen’s recovery, at tire inadequate price bought. Can he resist their claim to their equity? Is he in a better condition than John H. White, had he not sold? Unquestionably not. A court of equity will hold the land liable in his hands. 1 Story Eq. sec. 395.
    Indeed it is wholly immaterial, whether Cator had actual notice or not. The share of John H. White was decreed to him under the partition among the heirs of John White, and Cator bought this share of John H. White. The law presumes that he has notice of the partition, and consequently of all equities which the law annexes to the partition. 1 Story Eq. sec. 399 -400.
    It has been already shown that the partition gives an equity to each, in case of an eviction, to the party who is evicted, to be made equal with the others, out of the lands, to which the common title existed. The law presumes Cator to have had this notice, and he will be held responsible.
    See Bustard’s case, 4 Coke’s Rep. 121, and 5 Law Lib. Cruise Dig. Co. Lit. ubi supra, >
    
      Alexander, for the defendants.
    1. Defendant, Levin Cator, contends that he was not affected with such notice of the pendency of Koen’s suit when he purchased the'113 acres from John H. White, 29th January, 1833, as would have enabled even Koen to have recovered against him; because at that time Koen’s bill was so defective, on account of Campbell’s heirs not being before the .court, that he could not have recovered upon it. The amended bill filed 5th April, 1833, did not affect Cator, as he had purchased previously, and was not made a party. Story’s Eq. P. sec. 904. Mitford’s Eq. P. 400. The doctrine of les pendens only applied in favor of Koen, if at all, and not in favor of the complainants in this suit.
    2. There is error in that part of the interlocutory decree, which states that the complainants “are entitled in equity to have contribution from said Levin Cator, assignee of John H. White’s lot, for the land lost out of their lots, and for the rents, costs, &c., and to make contribution among themselves,” &c. “It is also decreed, that by said assignment to Levin Cator,” &c., “the obligation to make said contribution, devolved on the assignees, according to the value of the interests assigned, and it is decreed that there be a lien on the whole of said tract of land, not taken by Koen, to secure the contribution herein decreed.”
    The error of this decree will be manifest from the following considerations and positions of law.
    The doctrine of “implied warranty and. condition” contained in the 3d section of the 4th chapter of Allnatt on Partition, 155 to 165, in 5 Law Lib.-, and the ancient law on which that doctrine is founded, on which the chancellor founded his decree is not the law of Tennessee, for the following reasons.
    “The remedy by ancient wai-ranty never had, as I presume, any existence in any part of the United States, and personal covenants have superceded the old warranty.” 4 Kent, 470. The whole doctrine of ancient implied warranty and condition is shown to be exploded, even in England, and never to have been' adopted in the United States, in 4 Kent, 467 to 474.
    This doctrine has been abolished in England more than 200 years, and the usual covenants substituted in its place. . Pitcher vs. Livingston, 4 John. R. 1,8,16. Talbot vs. Bedford, Cook’s R. 452. 4 Kent, 472. Marston vs. Hobbs, 2 Mass R. 437-8. Townsend vs. Morris, 6 Cow. R. 123, 126.
    Sugdon’s law of vendors, and Crabb’s late elaborate work on real property, have entirely omitted this obsolete doctrine. ‘^Conditions cannot be annexed to estates of inheritance or of freehold without deed.” 2 Crabb, sec. 2149.
    The Statute 31 Henry 8th, ch. 1, relied on by Mr. Allnat, to establish his doctrine, at page 161, is set out at large in. his same -work, at page 165, and the 3d section is in the following-words:
    “Provided always, and be it enacted, that every of the said joint tenants, or tenants in common, and their heirs, after such partition made, shall and may have aid of the other, or of their heirs, to the intent to deraign the. warranty paramount, and to recover for the rate as is used between co-parceners after partition made by the order of the common law; anything in this act contained to the contrary notwithstanding.”
    It must be observed of this statute, that it is virtually repealed by our statutes of partition, 1787, ch. 17. sec. 1, and 1789, ch. 24, sec. 1, Car. & N. 514. The first of these statutes says, “ And such return and appropriation shall be binding and valid in, among, and between the claimants, their heirs and assigns forever.” The second of these statutes says: “Where real estate may be held by two or more persons, as tenants in common, they shall and may have the same liberty and privilege of having the said estates divided, as is provided by act, 1787, ch. 17, for dividing the estates of intestates; and the divisions when made shall be good and effectual in law to bind the parties, their heirs and assigns.”
    These statutes repel the complainants’ claim, even as against John H. White; for when they agreed to a division after Koen filed his bill, and in 'the decree therefor, reserved no warranty or condition to be liable to one another on Koen’s recovery, that division is valid and binding between the parties by our statutes; and the parties stand as if they had made partition by deed, without any of the usual covenants. Maney vs. Porter, 3 Humph. R. 347. 2 Kent, 473, 3 ed. An alteration of a British statute, would generally be deemed an adoption of the part re-enacted, and a rejection of that not within the perview of the alteration.” Tisdale vs. Monroe, 3 Ycrg. 320, 323-4.
    If our statutes of partition, then, have adopted in substance the 1st and 2d sections of the statute, 31 Henry '8th, ch. 1, they have as clearly rejected the 3d section thereof.
    Again: The third section of that statute does not extend to assignees; and if it should be construed to be in force in Tennessee, it would not reach Cator’s case, so as to hold him liable. Hence the propriety of the construction of that law in Allnatt, 161-2.
    If after the partition there was an implied warranty, that John H. White would bear his part of the loss occasioned by Koen’s suit, this warranty or condition not being in writing, or existing in contract,- was a personal claim by the other heirs on John H. White, which was a mere chose in action, that did not pass to Cator by his purchase of the 113 acres. Greenly vs. Wilcocks, 2 Johns. R. 1—5, top page. 43 Law Lib. 107-8. Bream vs. Dickerson, 2 Humph. R. 129. A verbal partition of land would be void, since the statute of frauds. Roberts on Frauds, 283-4-5. 2 Mass. 233. 15 Mass. 152. 2 Crabb, sec. 2321. And when the partition is by deed, made according to the statutes, there can be no valid implied warranty or condition not embraced in the deed or decree. Such a pre-tence is repugnant to the deed, and void. It is believed no case can be found, since the statute of frauds, giving effect to such implied warranty or condition?
    3. If Cator shall be considered wrong in the above points then he says, the manner of decreeing relief to the plaintiffs was erroneous. Seven acres of the land purchased by Cator frofti John H. White were taken by Koen, which fact was known to neither complainant nor defendant when the bill and answer were filed.
    
      Cator purchased from John H. White, all of the land not covered by the dower; when it is clear the dower, not being divided, should be taken first to satisfy Koen — this was not done, neither was any part of the dower taken, so far as Cator was concerned. That is, one-eighth of the loss of the land was $246, and that is all decreed against Cator, taking the seven acres of land to pay part of it. It is clear the dower ought to have paid its share of this $246.
    Again: The doctrine the complainants contend for gives a new division of the land. Littleton, sec. 263. Allnat, 156. 5 Law Lib. Cator contends the dower should first have been taken to satisfy Koen, as far as it would go, and then one-eighth of the balance, not satisfied by the dower, should be taken from Cator’s 113 acres. The old law did not allow of compensation in damages, and there is no law, ancient or modern, to support the decree in that respect. There is no law to support the decree for $104 for rents and posts. 24 Wend. R. 35-6-7, 59.
    4. The decree of partition was made in fairness with the full consent of all the heirs of John White, who seem to have had, at the time, no fears that Koen would recover any part of the lands divided; or if they had such fears, each one was willing to run the risk of Koen’s taking his share from the others, otherwise they would not have agreed to the partition.
    No attempt has been made to reverse this decree by writ of error coram nobis or otherwise, but it has been acquiesced in ever since its date, 11th August, 1827, Koen’s bill then being pending. It is, therefore, a binding adjudication. 1 Green-leaf’s Ev. sec. 528-9, 530, 551. Cook vs. Allen, 2 Mass. R. 462, 468, 470, 471.
    This suit is an effort to reverse that partition decree by bill in equity, which cannot be done in any collateral way. Jones vs. Read, 1 Humph. R. 335, 344.
    5. The agreement admits Cator took possession in January 1834, and continued that possession up to the filing oí this bill? 20th February, 1844. Cator in his answer relies on the statute of limitations, and it is now insisted, that statute is a complete bar.
    If Cator had held peaceable possession under a deed procured by fraud for these ten years, it would have been a bar. York vs. Bright, 4 Humph, II. 312.
    If, during this ten yeaz’s possession of Cator, complainants had beezi ignorant of their rights, as stated in the bill, the bar would still be good. Peck vs. Bullard, 2 Humph. R. 41.
    “Courts of equity, in applying the statute of limitations in analogy to its operation in a court of law, have made but one exception beyond those contained in the statute, and that is, where the cause of action has been concealed from the plaintiff by fraud.” Nicholson vs. Lauderdale, 3 Humph. R. 200.
    Koen’s claim being in existence at the time of the partition, though believed to be invalid by complainants, and in that belief they were mistaken, and they suffered Cator to occupy the land ten years under that mistake, still the bar is good. Mc-Crea vs. Purmont, 16 Wend. R. 460, 476-7.
    If the complainants could not sue Cator on account of the suit of Koen not being decided against them until 1839, still the statute of limitations ran from January 1834 in favor of Cator against them. Hickman vs. Gaither, 2 Yerg. 200 to 206.
    6. Possession under partition gives title to possessor by the statute of limitations. 1 Yerg. R. 256.
    
      Mr. Alexander.
    
    Mr. Marshall has been so kind as to show me his argument in this case, prepared since the argument in the supreme court, and I here briefly reply to such of his authorities as I did' not comment upon in my brief and vei'bal argument.
    1. The case of Nicely vs. Boyles, 4 Humph. 177, only shows' that a partition suit does not settle a real dispute about the title to the land partitioned, and as Wpody Buler, one of the heirs, would not submit to the partition, but remained in possession of the premises divided, ejectment was the proper remedy to try the title.
    It is decided by .this court, in Duncan vs. Gibbs, 1 Yerg. 256 — 8, that a partition made according to our acts of assembly, where there is no dispute as to title, “is an assurance of the land in severalty, and binding and valid,” &c., and is “just as effectual' as a decree in chancery, by which the title is divested out of one person and vested in another.”
    This decision still remains unshaken in all partitions where there is no dispute among the parties about title; and it also proves that seven year’s possession, under such partition, gives the possessor title by the statute of limitations. Now in the case before the court’ there was no dispute about title among the heirs and widow of John White, arid we insist each one’s allotment vested in him in fee. Dacre vs. Gorges, 1 Cond. Eng. Ch. Rep. 541.
    2. It must be observed of this case, that the partition was by deed or conveyance between the parties, and had not the solemnity of a legal adjudication as in the case before the court.
    It seems to be admitted, that the assignees or vendees of the shares that were sold were not liable to make good the mistake; alid that on account of those alienations there could be no new partition, so that by the English law, as it now stands, Cator cannot be reached in either of the modes sought by the bill.
    If there was a duty imposed on John H. White to make re-comp'ence or a new division, that duty did not pass to Cator, because the .burthen of covenants does not pass to the as-signee. 43 Law Lib. 107-8, Spencer's case. Bream vs. Dickerson, 2. Humph. R. 129.
    In this English case, relief was granted on the ground of mistake; in the case before the court, there was no mistake, and even if there had been, it would not have stopped the operation of the statue of limitations. 16 Wen. R. 460,476-7.
    3. I think I showed by the authorities in my brief, and especially, 4 Kent, 3d ed. 468 to 474, and Cook’s R. 452, that the doctrine of warranty in law, contained in all the old authorities cited by Mr. Foster and Mr. Marshall, had not descended to us, and is not the law of Tennessee. My establishing this general proposition threw the burden of showing that such warranty does exist in partitions, on the complainants’ counsel; and this they have entirely failed to do; and Mr. Marshall gives it up virtually in his written speech. And to say, relief should be granted, as he contends, on general principles, because it is right, leaves the case as to Cator under the full influence of the statute of limitations, he not being liable on account of concealed fraud, as the complainants, by their agreeing to the decree of partition, authorized John H. White to make the sale to Cator, which caused Cator to part with his money for the land, at an adequate price at the time, and a lawful sale of the land was made, no one having the right to question its fairness but J. H. White, who never did so.
    4. In the Chapter on Partition, 1 Story’s Eq. sec. 646 to 658, there is nothing favorable to the complainants. The sections 650-1-2 show, that equitable proceedings to obtain partition are superior to legal proceedings, settling all disputes and quieting titles. This proves that our decree of partition, being a proceeding of a court of equity, is binding among the parties and cannot be reversed collaterally by bill, and this doctrine strengthens that of 1 Yerg. 258. 1 Story, section 395, as to the constructive fraud in a purchaser buying with notice, might have some bearing if Keen were suing Cator for.half said land, against whom, however, the statute would run, if he failed to make Cator a party to his bill, and kept the same pending seven years.
    But as to complainants they cannot complain — it was no fraud as to them — they agreed to the partition, .and they did not believe Koen would recover,
    5. Jobe vs. O’Bryan, 2 Humph. R. 34. This case is an authority for Cator, if the tenancy in common was severed by the partition, and each tenant got a good title to his allotment, according to the statutes of partition. Car. & Nich. 514. If the courts have a right to make the exception to those statutes which the decree of the chancellor has made, I should like to know on what principle of law that right is founded, considering the course this court has taken in refusing to make exceptions to statutes. By such a decision the sanctity of ancient decrees, long since acquiesced in by the parties, will be violated — and the rules of law wisely made to protect the citizen will be broken — and an uncertainty in legal proceedings will be tolerated which may become troublesome.
    6. Mr. Marshall has not answered my argument, that the first section of the statute of 1819, protects Gator’s possession of the land. And he has not shown that complainants’ right to damages did not accrue against John H. White at the confirmation of the partition decree in 1828, if they ever did accrue at all. It is clear that the sustaining of this claim, if complainants had any such, depends on the merits of Koen’s demand, and not on the manner he conducted his suit.
    Adding this to my brief and remarks already submitted, I leave the case with you.
   Turley, J.

delivered the opinion of the court.

This bill is filed by the complainants, a portion of the heirs at law of John White, deceased, against the defendants, the heirs at law of the said White,, and their vendees, to have contribution for loss sustained by them, in consequence of an eviction by paramount title of a part of the lands allotted to them upon a partition of a tract of land which the said John White, deceased, owned and possessed, and which descended to them, and their brothers and sisters, children of the said White as tenants in common.

The partition of the land which forms the subject matter of this controversy, was made by the decree of the circuit court of Williamson upon the petition of the heirs. Afterwards one Hardy Koen instituted a suit in the chancery court at Franklin for an undivided, half of the whole tract which had been thus partitioned which Re recovered; this half when set apart by order of the court by metés and bounds, covered a portion of the land which had been allotted by the partition to the complainants, and it is for the loss thus sustained, that contribution is sought from the defendants.

Those of the defendants who are heirs at law of said White and claim by the partition, resist this demand upon the gener-, al allegation that there is no law for allowing it; those of the-defendants who are not heirs at law of the said White, but claim by alienation from those who are, in addition, insist that if there be such law, it only applies as between the partition-ers, and does not affect their alienees; and moreover, that they are protected by the statute of limitations.

The questions thus involved, are questions of importance and difficulty; and what seems very strange, have never before been presented for consideration in this state, and so far as we have been able to discover by examination, very seldom in any of our states. They necessarily involved the rights of partitioned, as against one another, and as against their assignees in all cases of lands held in joint tenancy, and tenancy in common, which may have been partitioned; and when the portion or portions of one or more have been lost or diminished by a paramount title; and also the proper remedy for the inforcement of those rights.

In the investigation of this subject, we are necessarily thrown back upon some of the earliest principles of’ the common law, and compelled to enter into an examination of the old and most abstruse authors, with the view of ascertaining what was the rule of action in such case at common law; and then to perform an equally difficult task of moulding it to suit present times, differently organised courts and a different practice. If in doing this, some error or inconsistency should’ be committed, it is not to be wondered at, considering how seldom we are nowadays called upon to institute such investigations, and upon what nice and metaphysical constructions a great many of the old principles of tenancies in England were made to turn.

By the common law .for reasons not easily explained, partition could only be compelled as between parceners and not between joint tenants and tenants in common, and partition was only given as to them by the statutes of 31st H. 8 c., 1 and 32d H. 8 c. 32. As between parceners, partition was made either by a writ of partition, which is a real action, or by bills in chancery, which have been encouraged in England, because in cases of complicated or difficult titles, partitions in .equity are effected in a much easier manner than by a writ of partition, and are divested of the technical niceties attending such proceeding. The partition of estates held in co-parce-nary then, is compulsory by the common law; but in as much as if a portion of the estate had been lost by a paramount title, before the partition was made, the loss would have been equally borne by all the co-parceners; so it is considered by the common law, that they shall not be in a worse position after partition, than if they had enjoyed their moieties without division; and therefore, after partition they shall have a like remedy as if they had enjoyed in co-parcenary; in which case if a suit had been commenced both parties must have been impleaded, and on a recovery there had been an equal loss to both; therefore, after partition there is an implied warranty annexed to each part so that if either be impleaded she may vouch her sister; and thereby, deraign th.e warranty paramount annexed to the purchase of the ancestor; and. if she loses she may have recompense against the other sister. Also if parceners enjoy in common, and any part is evicted by entry without action, they shall enjoy what is-left in co-parcenary; therefore, that parceners may not be in a worse condition by the partition which the law compels them to, there is a condition annexed to the partition that if either be evicted by entry without action, the party so evicted may enter on her sister’s moiety, and avoid the partition, by enjoyment of an undivided moiety of what is left, and compel a new partition. Coke’s Litt., Tit. parceners.

So that as between, parceners, in case of an eviction by suit upon a paramount title after the partition, the remedy was'at common law-by vouching the co-parcener to assist in designing the warranty paramount annexed to the purchase of the ancestor, and in case of failure, to have recompense pro rata for the loss, and in case of .eviction by entry without suit, by re-entry into the portion of the other co-parceners under an implied condition annexed to the partition so to do.

There is this difference between the warranty and the condition which the law thus creates upon the partition. When a co-parcener takes benefit of the condition, she defeats the partition in the whole, but when she vouches by force of the warranty in law for part, the partition shall not be defeated in the whole but she shall recover recompense, for that part which was lost, to the end that the loss may be equal. For both claim by descent, which is an act of law, and by the law each of them ought to have an equal part of the inheritance of their ancestor, therefore, she shall recover in value but the moiety of what she lost, so that the loss shall be equal, she bearing her portion of it with the sister vouched. Coke Litt. 174 a. Allnatt, 156, 4th Rep. 121.

In Bustard’s case, 4th Rep. 121, it was adjudged:

1st. “That in every exchange, lawfully made, this word <?;e-cambium implies in itself taciic, a condition and a warranty; the one to give re-entry, the other voucher and recompense, and all in respect of reciprocal consideration, the one land being-given for the other; but it is a special warranty, for upon the voucher by force of it, he shall not recover other land in value, but that only which was given in exchange; for in as much as the mutual consideration is the cause of the warranty, it shall, therefore, extend only to land reciprocally given, and not to other land, and the same is law in the case of partition.”

2d. It was resolved, “that if A gives in exchange three acres to B for other three acres, and afterwards one acre is evicted from B, in that case the whole exchange is defeated, and- B may enter into all his lands; for although the exchange had been good if A had given but two acres, or but one acre, or less, yet for as much as all the three acres were given in exchange for the others, and the condition which was implied in the exchange was entire; upon the eviction of one acre the condition in law was broken, and, therefore, entry given into the whole; for. it is the office of the condition to defeat the whole, and not any parcel, unless the condition is especially restrained to one part only. But in the case of exchange, if one is impleaded for one acre, and he vouches the other, and the demandant recovers, in that case the tenant shall recover in value, but only according to the loss, for although the condition is entire, and extends to all, yet the warranty upon the exchange may merely extend to part. The same is law of partition, but there- is this great difference between warranty -in law upon exchange, and warranty in law upon partition, as to the recovery in value; for in case of exchange, he who vouches shall recover in value according to the value which he lost; but so it is not in the case of partition; for if a man is seised of six acres in fee, every one of equal annual value, and dies, Laving issue, two daughters, and upon partition each has three acres, and afterwards one sister is impleaded for one acre, by one who has title paramount, and prays aid of her ’co-par-cener, she shall not recover an acre, but half an acre, so that each of -them shall have an equal part; for in as much as both claim by descent, which is an act in law, and by the law each of them ought to have an equal part of the inheritance of her ancestor; for this cause she- shall recover in value but the moiety which she lost, so that the loss shall be equal.”

From all which it appears, that as between the co-parceners themselves the remedy for equalizing a loss which accrued after partition is perfect, either by entry, which defeats the partition, or by voucher upon the implied warranty, which gives compensation in value for the actual loss, and not the nominal.

But this condition and implied warranty holds only in privity of estate, and, therefore, if. either parcener aliens in fee, and and the alienee is evicted, the aliening parcener, cannot enter on the other allotment, because by the alienation she has dismissed herself from having any part of the tenements as par-ceners, by thus severing the connection which previously existed; Allnat on Partition, 159; and my lord Coke says, that when the whole privity of estate between co-parceners is destroyed, there ceases to be any recompense to be expected, either upon the condition in law, or the implied warranty. Coke Litt. 174 a. Yet it is otherwise if the privity be not wholly destroyed; for instance supposing the alienation to be for years, forlife, or entail; then on account of the reversion, the parcener whose alienee is evicted, shall enter on the other part. Coke Litt. 173, b. The reasoning which would prevent the aliening parcener from entry or vouching upon the warranty in cases of eviction, applies with greater force to the alienee, who is a stranger in blood, and who unquestionably could not enter or vouch.

But it does not follow, because neither the alienor or alienee can enter upon or vouch the other co-parcener, that she may not have such remedy herself against them, for if she have not, it is in the power of the co-parcener who aims by the partition to defeat the remedy of her co-parcener by entry or voucer, by alienation immediately upon partition, a defect which it seems the common law in its wisdom would hardly permit, after the great pains it had been at to reserve their remedies.

Now it is perfectly right, that thé co-parcener who aliens, should not enter or vouch her coparcener, because by her own voluntary act she has severed the connection which the law created between them; and her alienee should not be allowed these remedies for the same reason; and because he might secure himself by the warranty of his vendor; but very different is the situation of the other co-parceners; they cannot prevent the alienation, and unless they alien themselves, it would seem hard that they should be deprived.of a remedy, given to them by the act of the opposite party. We think the weight of authority is, that they are not.

In the before cited case of Bustard, 4th Coke Rep. 121, it was further adjudged as a part of the first 'point, “that this warranty runs only in privity, for ’none shall vouch by the force of it but the parties to the exchange, or their heirs, and no assignee, but the assignee shall rebut by force of it, though the exchange was without deed, as appears, 3 E. 3, Formedon, 442. E. 2. The same law in case of partition, and as it is in case of warranty, so it is in case of a condition which •the law implies upon an exchange-. Therefore if A exchange with B, and B aliens to C, who is evicted by title paramount, C shall not enter upon the others, for as the warranty runs in privity to the parties to the exchaiige and their heirs, so also the condition in law runs in privity, and doth not extend to the assignee, and so none shall have contra formam, feoffamenti, but the feoffee or his heirs, but the assignee may rebut. But in the same case if A, who did not alien, is evicted, he shall enter into the land which he gave in exchange, although B had aliened it over.”

This authority satisfactorily establishes, that although the alienee cannot enter upon him who has not aliened, although he be evicted, yet that the converse is different and he may be entered upon. The same principle would unquestionably apply in the case of a voucher upon the implied warranty, as no reason can be perceived why it should not, and my Lord Coke, who is so very minute and particular, would surely not have let it escape his observation if it did not. And if there had been any difference in these particulars between an exchange and a partition, he certainly would have mentioned it, after being so particular in pointing out other and obvious distinctions between them.

Allnatt in his treatise on partition, page 161, says: “The practical consequence seems to result from the doctrine of implied warranty on every partition between coparceners, is that when a person contracts for the purchase of lands, the title to which depends on such a partition, the title not only to the lands contracted for, but to all the lands, comprised in the partition should be investigated.”

Mr. Preston, a very great property lawyer, in his well known work on the laws of property, page 304, says, “every partition between coparceners implies a warranty corresponding with the warranty on an exchange. %This point duly considered, leads to the conclusion, that when a title depends on a partition between coparceners, the title to all the lands comprised in the partition as well as the identical lands which are purchased, ought to be taken into consideration.” This necessarily implies the belief on the part of the author, that the right of entry and voucher vested against the alienee, without which, such investigation would not have been necessary. inasmuch as the alienation ipso facto would destroy the privity and toll these remedies. It is true at' page 75 of the 2d volume of this work, the same author uses expressions which seem to be at variance with his previous view of this subject; he there says: “though on a partition between coparceners there be an implied warranty while the privity continues, yet when one of them aliens, in fee, or even in tail, while the title is held under the entail, the warranty ceases, and consequently the title to the lands given to the other parceners on the'partition need not be investigated.” Allnatt in commenting on this passage, says: “It is presumed that the alienation referred to in this passage is to be intended as having been made not of the allotment contracted to be purchased, but of the allotment belonging to the other partners. For if the double remedy consisting of warranty and condition implied on a partition corresponds with that implied on an exchange,, it should seem to follow that after alienation in fee by one parcener and an eviction of that share, although neither she nor her alienee may enter by force of the condition, nor vouch by virtue of the warranty, yet the other parceners or their heirs may still avail themselves of these remedies against the alienee of the first parcener in like manner as they might have done against such parcener himself, in case she had not aliened. Allnatt on partition 162.

■ We are inclined to hold this explanation of the text of Mr. Preston to be the true interpretation, for otherwise, he not only contradicts the. case of Bustard, but his own previously expressed opinion, a thing too loose to have been perpetrated by so accurate a man.

We then hold that by the common deed, one co-parcener, who has been evicted of the whole or a part of the allotment assigned to her by partition, by paramount title, has a remedy against her coparcener either by entry upon the condition, or by voucher upon the warranty, both pf which arc implied upon such partitionthat by the first she vacates the partition and may force a new one; that bfthe last she is remunerated in value for what she has lost, having such portion of it herself as will equalize her interest with that of the other. These remedies are given by the common law because a partition in such case could be forced; and in order that no injustice should be done thereby to either party, but that their rights should remain with the single exception of enjoying them in severalty, as they were before partition; and they exist against an alien-ee.

We have seen that at common law, a partition of estates held by joint tenancy, or tenancy in common, could not be compelled, but were only made voluntarily by the owners thereof. In cases of partition so made, the common law implied no condition, no warranty, because the owners were not compellable as parceners were to make such division, and therefore might make express stipulation for their mutual pro-, tection, which, if they neglected, it was their own folly.

But we have seen that by the statutes of 31st H. 8th, c. 1, and 32d H. 8th, c. 32, a compulsory partition of such estates may now be had, and it would seem to follow, that (this being so) the same provision should be made for their protection mutually against each other in case of eviction after such compulsory partition. We therefore find that protection is given by the 3rd section of the statute of the 31st H. 8, c. 1, though not as fully as the common law gave it in the case of parce-ners, for the implied condition of re-entry is withheld. The words of the section are, “Provided always, and be it enacted, that every of the said joint tenants or tenants in common, and their heirs after such partition made, shall and may have aid of the others, and of their heirs after such partition, made to the intent to deraign the warranty paramount, and to recover for the rate as is used between coparceners after partition made by tbe order of the common law, any thing in the act contained to the contrary notwithstanding.”

We are of the opinion that this section of this statute gives to joint tenants, and to tenants in common after a forced partition under the statutes, as ample remedy against each other by vouching upon the warranty as was given by the common law in the case of coparceners, but that this is only so when the partition is forced under the statutes, for if the party voluntarily partition in such case, they stand as they did before the statute, having no implied warranty, and must protect themselves by special covenants. For Lord Coke says, “they must per-sue that act by writ de partitione fadcnda, and a partition madé between joint tenants without writ, remains at the common law. And so it is and for the same reason of tenants in common.” Coke Litt. 169a. At page 187a, he again says: “But since Littleton wrote, joint tenants and tenants in common are generally compellable to make partition,by writ framed under the statutes of 31 and 32 H. 8, and albeit, they be now compelled to make partition, yet seeing they are com-pellable by writ, they must pursue the statutes, and cannot make partition By parol,for that remains as at the common law, and if two joint tenants be of land with warranty, and they make partition by writing, the warranty is destroyed; but if they make partition by writ of partition upon the statute, the warranty remains, because they are compellable thereto.”

The supreme court of Pennsylvania in the case of Wisener vs. Wisener, 5th Watts, R. 279, hold that no implied warranty arises out of a deed of partition between joint tenants or tenants in common; their liabilities to each other arising out of the subject matter of the partition, depend upon the express covenants of the deed.

These statutes of 31 and 32 H. 8th, are in use, and in force in this state, because, 1st. we have no other statutes compelling partition in express terms, of estates held by joint tenancy, or tenancy in common; the first statute passed on the subject in North Carolina is, that of 1787, chap. 17: this statute instead of beginning with a provision that thereafter estates held in joint tenancy or tenancy in common, shall be partitioned, which it wouldhave done, had they never been partitioned before, begins by giving power to the county and superior courts to appoint' commissioners .to make such partition; from this, we are warranted in saying, that previous to the passage of that statute, partition in such cases had been as in England by writ under the statutes of H. 8th, and that the act of 1787 was intended to change the mode of making the partition, simplifying it, and creating different tribunals with jurisdiction over it. All our statutes upon this subject, since have Teen made with the view to the practice in such cases, and to fix the tribunals before whom such proceedings should be had. These are now the circuit and chancery courts.

2d. Tjiey are in force because the provisions of them, are meet and proper and consonant with our institutions and form of government. And 3d. Because they have been recognized as in force and use in the State of North Carolina as will be seen by an examination of the collection of the English statutes in force and in use in North Carolina made by Francis Zavier Martin, under the authority of legislature of that state. If they are in force and in use in North Carolina, so they are in this state.

Then we have arrived at the conclusion, that in the case of a partition of real estate held in joint tenancy, or tenancy in common, there is by the force of the statute of 31st Henry 8th, ch. 1, an implied warranty between the parties .thereto, by which they have the mutual right, in case of eviction by paramount title, to have compensation against each other for the loss sustained, they having their equal portion of it, and that this remedy exists against alienees, though not in their favor.

The only other question remaining is, in what forum, and by what mode of proceeding shall this redress be had? '

The right of entry does not exist, because there is no implied condition given by the statute, and because the right to make actual entry upon occupied land, is not congenial with our mode of doing business, and has never been in force and use in this state. The implied.covenant given by the statute cannot be vouched upon, because that mode of proceeding has never been used in this state, and is even now obsolete in England. We have been able to find no precedent for an action of covenant upon such implied warranty. It then necessarily follows, that such relief must be given by bill in a court of chancery, or it n\ust be altogether denied, a thing that justice and equity will not permit. It seems to us, that a court of chancery is peculiarly adapted to give the relief, which is upon the principle of contribution, a subject over which such courts have so long had almost exclusive jurisdiction. The account can be better taken, the value of the land better ascertained, and the loss more equally distributed between the parties; and moreover the court of chancery is one of the forums for making the partition; and surely no court can better rectify the mistake of a partition than that which has decreed it. We, therefore, think the remedy in a court of chancery, either by setting aside the partition when improperly made, and it can be done without injustice to others, or by contribution, when it is most proper.

In this case contribution is asked, and it seems to us to be the most practicable and just mode of compensating the injured parties, and it seems to us that they are entitled to this against the co-tenants and their assignees, because the partition is made, not by deed, but under the statute, and because the complainants have lost a portion of land allotted them, by paramount title.

We do not think the statute of limitations bars a against any one liable, under this opinion, to make contribu tion, because no right to have such contribution accrued to the complainants until they were evicted by paramount title, and sufficient time has not since elapsed to constitute a bar to their recovery.

We, therefore, decree the subject matter in controversy for the complainants, and direct a reference to the clerk and master, to ascertain and report to this court the value of that portion of the shares of the complainants which has been lost by a paramount title since the partition, and show in what portions this loss must be distributed among those entitled under the partition, as well complainants and defendants.

Decree accordingly.  