
    Edwin Morton v. Edmund Outland.
    Where a lessee of land, being also a tenant in common with others of the reversion, files a petition in partition, setting forth therein the title of the tenants as a present estate in fee, without noticing the lease, he is estopped from afterward setting up his rights as lessee, against a purchaser under the order in partition. •
    Motion for leave to file petition in error to reverse the judgment of the district court of Logan county.
    Morton sued on note and mortgage executed by Outland. The defendant, Outland, answered that the note in suit was one of several given by him in July, 1866, as purchaser at partition sale, in proceedings instituted by Morton for the premises described in the petition, and that the plaintiff, Morton, was then in possession of the premises; that on August 6, 1866, after receiving a deed from the sheriff, he (Outland) demanded possession of Morton, which he refused to give, and held possession of the whole farm until the first of April *next following, by which he was damaged $1,000. [384 This sum Outland claims as a set-off.
    Morton replies that he had and kept possession of the premises at and during the time stated in the answer, under a lease from the ancestor of himself and the other parties to the partition suit, executed in April, 1862, for five years.thereafter: that Outland had full knowledge of tlie existence of tho lease and its terms, and purchased tho promises with the understanding and knowledge that he was not to get full possession of the premises until the termination of tho lease.
    To this reply Outland demurred, presenting the question whether he, as purchaser at partition sale, is bound by the incumbrance oí the lease.
    Tho common pleas sustained the demurrer, thereby holding that he was not; and. in the entry of judgment on a verdict as to the value of the possession for the unexpired term of the lease, a deduction of $380.72 was allowed the defendant Outland.
    The district court, on error, affirmed this holding and judgment.
    
      Kernan & Kernan, for the motion :
    The rule of caveat emptor, in all its rigor, applies to purchasers at judicial sales. 6 Ohio, 477; 2 Ohio St. 36; Salmon et al. v. Price, 13 Ohio; 368, 400.
    This case is not an exception to tho general rule because the plaintiff was tho petitioner in- tho partition proceedings. All the owners of the land were as much identified in these proceedings as tho plaintiff in error. They were all tenants' in common with him; were all parties — not “adverse parties;” some one or more of them must cause the petition to bo filed, and each of them contributes in equal proportion to the expenses of the proceedings. The proceedings under such petition are analogous to proceedings in rem. They are not regarded as adversary. The co-tenants against whom partition is demanded are not strictly parties. The suit, if it can be called one, operates on the land. 6 Ohio, 255; 9 Ohio, 117 ; 13 Ohio, 548-550.
    If, notwithstanding the defendant’s knowledge and actual 385] ^notice of the plaintiff’s rights as lessee of the premises, he is entitled to indemnity for the few months he has been kept out of possession, this indemnity should come from all the tenants in common, by equitable contribution. But he is not entitled to such indemnity, because he bid for and purchased the premises, then well knowing that he could not have possession thereof until the month of April then next following.
    
      W. H. West, contra.
    1. The defendant paid full value for the farm, without abatement on account of the lease. It was therefore inequitable that he should 'not at once be permitted to enjoy the purchase.
    2. The plaintiff had brought the farm to sale; he made no reservation on account of the lease; he and his co-tenants reaped all the advantages of an unincumbered sale: his act, therefore, was a waiver of his lease, the same as if he had by deed of quitclaim privately convoyed his interest in the farm without reservation. To hold otherwise, would operate as a fraud on the purchaser.
    3. The rule of caveat emptor only protects the rights and liens of innocent strangers, not of parties or privies, especially when guilty of laches.
    
    4. Notice to the purchaser, proclaimed on the day of sale or at any other time, could make no difference. The plaintiff himself could be a bidder at the sale. If he desired to deter other bidders who were running the price up, it would be exceedingly convenient to have it proclaimed that purchasers would not obtain possession for a given number of years. Thus he could use his lease to cheat and defraud his co-tenants. He could force a partition, then terrify bidders, and control the purchase.
    The demurrer was properly sustained.
   By the Court.

The lessee was estopped by the proceedings in partition from setting up his rights as lessee. The statute required him to sot forth in his petition in partition *the nature of his [388 title. Although it is not directly shown by the record in this case, yet we think it is clearly inferable that the petition in partition set forth a present fee simple title in the tenants, without at all noticing the outstanding lease. The plaintiff, therefore, was estopped from impeaching that title by setting up the lease.

Motion overruled.  