
    In the Matter of Ebenezer Prentiss, Petition for Partition.
    "Where one tenant in common has made separate conveyances of the entire-right, in various parcels of the land held in common, so that each purchaser’s title and possession is separate and distinct, the other tenant in common can not sustain a joint suit for partition against such purchasers,, but must bring a separate suit against each.
    In error from Huron county.
    The record in the case shows that, at the November term of the court of common pleas of Huron county, 1833, Ebenezer Prentiss, preferred his petition in said court, representing that he was seized in fee simple of one-third part of all lands granted by the state of Connecticut to one Abigail Elliot, a sufferer by the-depredations of the enemy, in the war of the revolution. That he derives title from one Anna Larouche by deed, the said Anna being one of the three heirs of the said Abigail Elliot. That the-interest of said Abigail Elliot was classified in the township of Berlin, or township No. 5, range 21, of the Connecticut Western Reserve, in the partition made by the Sufferers’Land Company, so-called, to which partition the petitioner assents. That the petitioner, in virtue of his purchase *of the said one-third of the interest of the said Abigail Elliot, has become tenant in common with the other proprietors of said section to him unknown. That the right of the said Abigail bears the same proportion to-the whole section as four hundred and ninety-six pounds thirteen shillings and ten pence does to one thousand three hundred and four pounds six shillings and four pence half penny. The prayer-of the petition is, that one-third of the right or interest of the said-. Abigail Elliot may be set off to the petitioner in severalty.
    Legal notice of the pendency of the petition was given, by publication in the Western Intelligencer, a newspaper in general circulation in the county of Huron, and the cause continned from term to term, until the March term of the court, 1835; at which term John O. Miner, Jos. Otis, Jacob Mingus, and nineteen others appeared in court, and were permitted to filé answers, in which they denied the right of the petitioner, and claim to hold each one for himself in several parts and portions of said section. And: the case was again continued.
    
      At the June term of the court, 1835, the case was submitted to the court upon the petition, answers, exhibits, and an agreed statement of facts which is also made a part of the record. In this statement of facts, it is admitted that Abigail Elliot was the grantee of the State of Connecticut, as stated in the petition; that the petitioner has received a conveyance of one-third of this right from Anna Larouche, who is admitted to be one of the three heirs of the said Abigail Elliot, and that the right of the said Abigail Elliot was located in said section, and that neither the petitioner, nor those under whom he claims, were ever in the State of Ohio until within five years last past. It is further admitted that the right of said Abigail Elliot was sold for taxes assessed by the fire-land company, incorporated by the State of Connecticut, and conveyed in pursuance of such sale on January 29, 1798, by the collector of said taxes, to Frederick Miner, which deed was duly executed and recorded. That the present defendants possess the several parcels of land by them claimed under deeds from the said Frederick Miner, and that the defendants are the legal owners of that portion of the said Abigail Elliot's right not claimed by the demand-ant. That the defendants and those under whom they claim, have had the control of the land since the tax sale in 1798, and have been *in actual possession, making improvements, for the last twenty-five years.
    On hearing, the court of common pleas dismissed the petition, because there were many persons in said section claiming to hold distinct parcels of said land in severalty, by virtue of titles derived from Frederick Miner, whose entire right to said section is not disputed except as to one-third part of the share of Abigail Elliot, and the petitioner claims to have an undivided and common interest in the whole section.
    To reverse this order of dismissal the writ of error is brought.
    The case was elaborately argued by Webb, for the plaintiff, and Boall and Worcester, for the defendants.
   Judge Hitchcock

delivered the opinion of the court:

It will be seen, by a careful examination of the statement of facts, that tbére is no controversy but that Frederick Miner and those claiming under him have the legal title to two-thirds of the interest originally granted by the State of Connecticut to Abigail Elliot. Whether this title was acquired under a sale for taxes or otherwise, it is immaterial to inquire, so long as its legal existence is admitted. -The record shows that the section in which this interest was classified, and in which partition is now demanded, has been surveyed into lots containing about one hundred acres each, and that these lots or parts of them have boon conveyed by Miner or his grantees to the defendants in severalty. So far as these defendants claim, therefore, they claim npt as tenants in common in the whole, but as tenants in severalty of separate and distinct tracts. Now, admitting the right of the petitioner to one-third of the interest originally vested in Abigail Elliot, there can be no doubt that he is tenant in common to the extent of that interest in each and every one of these several tracts or parcels, because to that extent he is tenant in common with the other proprietors of the whole section.

Having an interest in common in the whole section, it is insisted by his counsel that his co-tenants could not convey any part of •their interest in a separate tract in the section, so as to vest in the .grantee any title to the part so conveyed. This subject was fully •considered by the court in the case of Lessee of White v. Sayer, 2 Ohio, 110, in which case *it was settled that a tenant in .common could convey a part of his undivided estate; and that a deed by a tenant in common, purporting to convey in severalty, is ¡a good conveyance for the grantee’s undivided part within its boundaries. The correctness of this principle is recognized in the ■case of Green’s Lessee v. Emerick, 6 Ohio, 391. Upon the authority of these two cases we take the law to be settled in Ohio, that a tenant in common can convey a part of his undivided interest ,in the whole land, or'his whole undivided interest in a part of the land. True, the counsel for the plaintiff has commented upon the before-cited cases with considerable warmth, and some little asperity; but his argument has not satisfied the court that those cases were improperly decided. Nor is there anything in the nature of the case now before us to lead to the conclusion that more substantial justice could be done by a different decision.

Such, then, being the law, there is but one question in this case, and that is, whether, under our partition laws, an individual who has an interest in common in several tracts of land with others, who have no common interest with each other in those several tracts, can enlorce partition unless by separate proceedings against those who, together with him, own those separate tracts. For instance, A. is tenant in common with B. in one section of land, and with C. with another, can he join the two together in one petition ? It seems to the court clearly that he could not, and for the reason that he is joining together in the same suit those who have no common interest. In order to sustain the proceedings the petitioner must have a common interest, and those of whom partition is demanded must have a common interest in all the lands sought to be divided.

It follows that the court of common pleas did not err in the judgment complained of.

I am not prepared to say, however, that the petitioner can have no relief except by separate proceedings under our partition laws against all these defendants. It is possible that by bill in chancery, where Miner and all claiming under him were made defendants, he might obtain relief. And that if a sufficient quantity of land to satisfy his claim remains in the hands of Miner, it might be decreed to him. This, however, is a mere suggestion, and upon this point it is not intended to express any opinion.

The judgment of the court of common pleas is affirmed, with costs.  