
    *William Dennison v. Joseph C. Foster and others.
    .A purchaser from a tenant in common, can not throw the owner of a paramount title upon later purchasers of another portion of the common land.
    -'One tenant in common can not work a division of the common property, by-conveying his share in a deed defining its limits by metes and bounds. The effect of such deed is to pass to the purchaser the grantor’s proportional interest in the part described in the deed.
    'Tenants making such separation of interests, and their heirs, are bound by it, especially if the deed contains covenants of warranty, and it may be ratified by the co-tenants; but there seems no such relations between earlier and later purchasers, jis authorize the former to impose such obligation upon the latter.
    .As respects heirs, chancery might mould their rights, so as to protect the alienee of their ancestor, but no such principle applies between purchasers.
    In Ciianoert. From Hamilton. This bill is brought to quiet the plaintiff’s title to lot 92 in Cincinnati, or to have partition of that lot and out-lot 20, late belonging to the heirs of John Cutter in such form, that the plaintiff who holds a part of the title may protect his possession of lot 92.
    The plaintiff holds by purchase from William Woodward and Samuel Foster in 1808. Woodward and Foster at that time claimed a ■ complete title to both lots. There has since been much litigation concerning them, and suits recently decided, 8 Ohio, 87, and in Lessee of Foster v. Dennison, ante 121, and Lessee of Pillsbury et al v. Dugan «t al, ante 117, have established their right'to six eighths in fee, and estates for life in the remaining two eighths. The claim of the plaintiff to be quieted in his possession of the whole of lot 92, as owner, is not sustained; but he endeavors to support his bill upon the ground that he was the first purchaser from Woodward and Samuel Foster, and has a right to demand such a partition, as will leave his lot entire, ■by casting upon later purchasers the burthen of paramount claims.
    B. Storer, 0. Fox, and D. Van Matre, for plaintiff, insisted,
    that •as the plaintiff holds a conveyance with warranty for the whole of lot
    
      92, made when the grantors Woodward and Samuel Foster had possession of and claimed in the same right both that lot and also out-lot' 20, equity will secure the rights of all by a partition equal in value. Where there are several parcels of land, partition is not required to-be made of each separately, but “ the whole of one estate may be allot ed to one, and the whole of another estate to the other, provided that his equal share is allotted to each.” 1 Story Eq. 610, § 657 ; Alnat on Part. 12 to 28; 1 Pr. Wms. 446. And where an equal divi sion can not be made on account of the character of the *e.-tatc, chancery will compel a compensation in money, by one to other parties, so as to render complete and equal justice. 3 Bibb. 508 ; 1 Dana, 177 ; 2 Dana, 456. In making partition the innocent purchaser shall be' protected in his possession, and the claimant’s portion taken out of the-other part of the land. 3 Paige Ch. 474, 553. The most that can he said of the purchasers after the plaintiff is, that their equities are-equal to his ; and where the equities are equal, the oldest prevails.
    V. Worthington, J. C. Wright, and T. Walker, for the defendants.
    The true enquiry in this case involves the right of the plaintiff’ to throw Foster off. from lot 92, upon out-lot 20, for any interest he-may have in lot 92, in common with the plaintiff. The facts are these : the plaintiff and Foster are tenants in common of unequal interest in lot 92, and Foster and others are like common tenants of out-lot 20. The plaintiff’s title was acquired by the deed from Woodward and. Foster in 1818, to M’Olelland, with covenants of title and warranty. Foster has a paramount title to an undivided part of both lots, but the? plaintiff has no interest in the out-lot. We concede that a tenant in common may convey his interest in the whole or in a part of an entire - tract held in common with others. 2 Ohio, 112 ; 6 Ohio, 398; 7 Ohio, pt. 2, 129, 131; and that this deed for the whole tract, will pass all the interest he has; 2 Ohio, 113; but such deed conveys nothing; beyoDd its limits. 2 Ohio, 117 ; 1 Bibb. 510. So in partition, no-right is acquired out of the tract divided. 3 Ohio, 23. But we think ir. clear that one tenant in common has no right to appropriate to-himself any part of the common property, and say to his co-tenant, take what is left. 2. Ohio, 118, 120.
    Partition in Ohio, is only among common and join ttenants, and-parceners, and where one of such tenants has conveyed in parcels, his co-tenant can not claim partition in one proceeding against all the. holders of different parcels, but must pursue each separately. 7 Ohio,, pt. 2, 131. Chancery has now power to decree partition, but it can-■only do so between joint or common tenants or parceners of the same ■tract or parcels of land. Ib. — Wright, 168; 3 Bibb. 508. Equity will never make a partition which must operate unjustly. 3 Paige 474, 553; 5 Ohio, 243; 7 Ohio, pt. 2d 120; 3 Bibb. 508. In this •ease it would be unjust to make the holders of the out-lot bear more than their proportion of the paramount title. Even in case of dower, chancery will see, that the incumbrance is borne by the holder of each tract to which it attaches. Wright, 285, ^Tenants in common are seized per my etper tout, in the whole and in each and every part, .and neither has a right to appropriate part of the common property to his own exclusive use, and .we concede that Woodward and Foster had no right to appropriate to themselves the whole of lot 92, and if they now held the interest in the residue of .the common property, Dennison might throw them upon it, if of sufficient value to indemnify them, but inasmuch as they have parted with all their interest in the •out-lot, the position of the parties is changed, and there is nothing ■remaining in them to be so appropriated, to avoid suit upon their covenants, and each party having such covenant is left to resort to it for protection. The plaintiff, then, makes no case for the interference •of equity.
    N. Wright, in reply.
    Dennison occupying lot 92, as his own, has made large improvements since the commencement of the ejectment decided last year, for which the occupying claimant law makes no provision, and ■equity will give him such partition as to secure him the whole of his Improvements. He may throw Foster’s interest upon out-lot 20, in the same proportion he recovers. A tenant in common has a right in -partition to equal share in quantity and value of the common property, ■though none to have set'off to him any particular parcel, but equity may so distribute the shares as to do justice to all concerned. Thus -in case of a general lien upon a tract of land sold in parcels, equity will compel the lien-holder to forbear or resort to the parcel first sold until the other parcels are exhausted. In like manner, a creditor having access to but one fund, will turn off a creditor having access to two. I hold it settled, that the location of the shares in partition, is ■ entirely within the control of equity. But suppose one of two parceners to make a conveyance with warranty of the entire interest .in the divided half of the tract. This operates at law to exclude the other co-parcener, as to one-half of his share, from the half so conveyed ; does it not operate in equity to exclude him entirely from the .half conveyed, and locate him altogether on the other half? The •selling co-parcener, having warranted the half conveyed, can not claim an interest in the other half: for that would operate to throw his coparcener upon the part he had warranted, and so defeat his own warranty. Equity estops him from this. When partition is sought of the tract so situated, the grantee of the one co-parcener stands, in relation to. the other co-parcener, precisely as the man holding a claim on one fund against him who holds a claim on two : and equity turns the latter on to the fund which the Mother can not reach. Equity locates the share of the grantee on the tract he has purchased, giving the other co-parcener all his legal rights in the residue. Supppose the same co parcener should, after conveying the first half, convey the other entire half of the common property. In that ease, we contend, the tract last aliened must in equity be set off to the other co-parcener, precisely as though the second conveyance had never been made. By the first alienation the rights and equities of the parties are fixed; the half not aliened is charged with the equity against the aliening parcener; he has in equity no right in it, and afterwards conveys it •subject to this equity. The first alienee acquires, with his title, the •equity to be thus protected, and the second alienation can not defeat it. If those two ajienees ara before the court for partition, one of them must lose the whole ; the question is which shall bear the loss ? It is clear the oldest equity must prevail. One of two innocent pur■chasers is tobe saerified; which has the best right to protection? The answer is, he who has the oldest equity. 5 J. Ch. 240. The title itself charges the party with requisite notice, if any is required. 2 Ohio, 110. As to one-half out-lot 20, it is held by the Woodward High School, not innocent purchasers for a valuable consideration, but mere donees, mere volunteers, standing in the same relation to the subject as Woodward himself would; thus the court is enabled to do perfect equity, by locating Foster’s share on that half without any loss.
   By the Court,

Lane, C. J.

Since the eases heretofore decided upon the interests of these parties, there remains nothing to be settled in this suit, except the claim set up by Dennison, that the first purchaser •of a specific defined tract, from a tenant in common, may require from the co-tenant to apart his share from that part of the whole tract last sold by his grantor. That as Woodward and Samuel Foster, who claimed the whole of lots 92 and 20, first sold 92 to M’Olelland, under whom the plaintiff takes title, and as Joseph C. Foster has recovered ■an undivided fourth in both lots by these suits, the plaintiff asserts a right to set off the undivided share thus recovered in that part of the-land remaining with Woodward and Samuel Foster, after their sale to M’Olelland. and now held by later purchasers. It is argued, that as between tenants in common all rights are equal; that a partition giving to Joseph C. Foster his pr portional value in lot 20, is as just as any for him, and more equitable to the plaintiff, in consequence of his-improvements ; and that the other parties have *no reason to complain, because their titles are later, and taken with a knowledge of his.

One tenant in common can not work a division of the common-property, by conveying his share, in a deed defining its limits by-metes and bounds. As between the co-tennnts and the purchaser, all-the effect of such a deed is to give to such purchaser, the proportional interest of his grantor, in that part of the common property-described in the deed. 2 Ohio, 113; 6 Ohio, 398. The tenant making-this separation of interest, and his heirs, are hound by it, especially iff the deed contains a warranty, and it may be accepted and ratified by the co-tenants. 5 Ohio, 244; Wright, 712. But there seems no such relations between earlier and later purchasers, as authorize the-former to impose any such obligations upon the latter. The rights- and equities of each are equally ample and perfect. The loss which they suffer in this instance, is not from an incumbrance, which may be-extinguished, either by the appropriation of the land left with the-heirs, or by a contribution among themselves; but is a full and paramount right over a proportion of the land of each. As respects heirs, we would endeavor to mould their rights, so as to protect the alieneeof their ancestor, but we find no authority to apply any such principas between purchasers, and we must leave each to sustain his share-of the burthen.

The right to relief, therefore,'in the point of view contemplated by the bill, is not sustained. There is, however, a fact disclosed by the-evidence, and in some degree touched upon by the argument, which is deserving fuller investigation. -Mrs. Woodward, before her sale to Joseph C. Foster, covenanted with the executors of Woodward, to release to them all claims arising from or under the conveyances off Woodward. How far this expends; how ftdly it precludes those who hold her estate, from asserting a right which may ultimately fall upon the estate of Woodward, is a grave question. It will require a change of pleading to present it. The present suit is so complicated with other matters, and other parties, that we believe it had better be dismissed, reserving the right to pursue this enquiry in a new bill.  