
    Patrick Brennan vs. Richard M. Hill.
    Where a joint tenancy in a tract of land has been created by deed, on the death of either of the joint tenants, the Ordinary has the power under the Act of Assembly of 1824, to order the sale of the share of the deceased tenant, for the purpose of division among those interested.
    BEFORE MB. JUSTICE BUTLEB, AT FAIRFIELD, SPRING TERM, 1838.
    This was an action of trespass to try titles. The land in dispute had been conveyed by Eleazer Mobley to Richard M. Hill, John Hill, and Eleazer Mobley Hill, by deed dated 19th June, 1804. John Hill and Eleazer Mobley Hill died intestate, ten or twelve years before the trial, and under age, leaving Richard Hill surviving, and Charles Hill, (who died a short time afterwards without children) and Maomi Hill, (the wife of the plaintiff) Dorcas Mason, (the wife of Turner Mason,) the children of the deceased sister, Nancy Hill, and their mother, Mary Ann Hill, their heirs-at-law.
    The plaintiff produced in evidence a deed of conveyance from the sheriff of Fairfield district to Daniel Kerr, dated 8th February, 1831, conveying all Richard M. Hill’s interest in said land. Also the proceedings in partition before the Ordinary : by which it was ordered that the real estate of which John Hill, deceased, and Mobley Hill, deceased, were tenants in common, should be sold; and a deed from the sheriff under the said proceedings in the Court of Ordinary, to the plaintiff, dated 6th April, 1835, and describing the land as containing one hundred acres, more or less. There never had been any partition of the land between any of the parties before the order of sale by the Ordinary. Kerr accepted the summons in partition.
    It was proved that Richard M. Hill was on the land, and had been on it, ever since the sale to the plaintiff — that with the exception of two years, which he had spent in Alabama, he had resided on the place ever since he was a child. He returned from Alabama about three years before the trial. Hill and Brennan cultivated the land together, the first year after Brennan's purchase — afterwards Brennan, took possession for bimself of most of the cleared land. Hill then cultivated a small part of the land and held the house.
    On the part of the defendant it was proved, that John Hill and E. M. Hill died before Kerr purchased at sheriff’s sale. Richard M. Hill went to Alabama in 1828 or 1829, and was gone two years. That after Kerr purchased, Hill continued on the land, with Kerr’s consent and permission, up to the time of the trial.
    The presiding Judge was of opinion that the Ordinary bad jurisdiction of the matter; and as to the extent to which the plaintiff might recover, in bis report of the trial be expressed bimself as follows:
    “The second ground of appeal presents a question of greater difficulty, depending entirely on the construction of the order of sale of the land. I bad little doubt, from what bad occurred at the trial, that it was the wish of the parties, and the design of the Ordinary, to have sold the entire tract of land; and I think the terms of the order are comprehensive and descriptive enough to authorize the sale which the sheriff made of the whole tract. The first part of the order speaks of the land as the real estate of which John and Mobley Hill were tenants in common ; and what real estate is thereby meant, is subsequently described as containing one hundred acres, bounded, &c. The words ‘tenants in common’ are used by way of pointing out the particular tract of land, and not with a view of saying what interest should be sold.”
    His Honor refused to grant a motion made for a nonsuit, and the plaintiff bad a verdict.
    The defendant renewed bis motion for a nonsuit, in the Court of Appeals, on the following grounds:
    1st. Because tbe Ordinary bad no jurisdiction of tbe case, as tbe joint tenancy was created by deed, and one of tbe original joint tenants was still living.
    2d. Because the proceedings in the Court of Ordinary applied only to two thirds of,said land, to wit: the estates of John Hill and E. M. Hill; and Daniel Kerr, under whom the defendant is in possession, still holds one third under the deed from Eleazer Mobley. In case the motion for a nonsuit be refused, the defendant moved for a new trial, on the following ground: That the construction of the proceedings in the Court of Ordinary, and of the sheriff's deed, made in pursuance thereof, was a question of law for the Court, and ought not to have been left to the decision of the jury.
    
      Clark and McDowall, defendant’s attorneys.
   Curia, per Butler, J.

The first ground of appeal is, that the Ordinary had no jurisdiction to order the sale of any portion of the land in controversy, as the joint tenancy was created by deed, and one of the original joint tenants is now living. It may be remarked that the surviving joint tenant or his vendee, was interested with others, who were plaintiffs in-partition, in the distributive share of the two tenants John Hill and E. M. Hill, who died intestate; and the question is now, had the Ordinary authority, under the Act of 1824, to make an order for the sale of these shares for the purpose of division among those interested; and thereby to vest the purchaser with title to the extent of the deceased tenants, and making him a tenant in common with the surviving tenant. If this proposition cannot be maintained, the plaintiff took nothing under his deed from the sheriff, and must not only fail in this action, but has no legal interest in the land. This depends upon the construction of the Act of the Legislature of 1824, giving power to 'the Ordinary to divide and sell real estate for partition. By this Act is is said “the Judges of the Court of Ordinary shall have full power and authority, upon the application of any person or persons interested therein, to make sale or division of the real estate of any person or persons, who may have died or who .shall hereafter die intestate or leaving a will.” Then 1st. Did not John and E. M. Hill die intestate, leaving real estate ? 2d.' Did not the Ordinary take jurisdiction upon the application of those interested therein ? 8d. Did he not order the sale upon the ground that, in his judgment, it could not well be divided ? It seems from the obvious meaning and intention of the Act, that he had authority to do so; and from his proceeding, it is apparent that he has done so ; giving the sheriff the right to sell at least two-thirds of the tract of land now in dispute. The defendant’s first ground cannot therefore be maintained.

Tbe sheriff has undertaken to convey the entire tract of one hundred acres to the plaintiff, upon the assumption that he had full power to sell the same by order of the Ordinary. Supposing that the order was full enough to justify the construction put on it by the sheriff, it may very well be questioned whether the Ordinary had the right to sell the third held under the deed by the surviving tenant or his vendee. Without the vendee or tenant had given his express and written consent for the sale of the third, it is evident that the Ordinary had no authority to order it to be sold. It is sufficient to say that no such consent has been, or perhaps can be, proved. This question, however, becomes of no importance in this case, as the Court is of opinion that the order does not authorize the sheriff to sell more than John and E. M. Hill’s interest and estate in the land, to wit, two-thirds. The language of the order is, that the real estate of which John Hill, deceased, and Mobley Hill, deceased, were tenants in common, should be sold. Giving these words their technical meaning, without regard to what might be inferred to have been the intention of the Ordinary from the latter part of the order, which is by no means explicit, the conclusion of the Court cannot be disputed, and such is the construction to be put upon them; so that, properly speaking, the sheriff sold but two-thirds of the entire tract of land; and the deed to the plaintiff cannot be regarded as good for any more. From this, it would follow that Kerr is in (by his tenant) as tenant in common with the plaintiff, which would be a position fatal to this action, upon the familiar principle that one tenant in common cannot maintain an action against his -co-tenant; unless the co-tenant be guilty of an ouster. The only question which is, therefore, left open in this case is this, does the present defendant, Richard Hill, hold possession of the land as the tenant of Kerr, and if so, has he been guilty of such' an ouster as would subject him to the liability of this action ? If Hill is not the tenant of Kerr, he must be regarded as any other stranger in possession, answerable to ? any one tenant for a trespass; or if being a tenant he has been guilty of an actual ouster, he would be held liable to this action. If this state of facts does not exist, (and I doubt whether it does,) the plaintiff had as well take a nonsuit and go into equity for a fair partition of tbe land. As tbe Court is unwilling to prejudge tbe question, a new trial is granted, sustaining, however, the principle of tbe defendant’s second ground of appeal.  