
    Wm. H. Harvin, et al., vs. Sarah Hodge; Wm. N. Harvin, et al., vs. Jesse Baker.
    One tenant in common cannot maintain an action of trespass to try titles against his co-tenant, without an actual ouster; and there cannot be an ouster unaccompanied by a disturbance of the possession.
    A purchaser of the wife’s land from the husband, is, after her death, a tenant in common with her distributees; and when the latter have not been in possession, they cannot maintain an action of trespass to try titles, either against such purchaser, or 'one holding under him by a conveyance of part of the land in dispute.
    BEFORE Mb. JUSTICE O’NEALL, AT SUMTER, FALL TERM, 1837.
    These were actions of trespass to try title.
    The land in dispute once belonged to Mary Simmons, and the plaintiffs were her children. She and her husband Peter Simmons, on the 25th October, 1821, conveyed it to the defendant, Sarah Hodge; on the 31st of the same month she (Mary Simmons) relinquished her inheritance; Seven days not having expired from the execution of the deed, the relinquishment was void. She died soon after, leaving her husband Peter Simmons, and the plaintiffs, her children, surviving her. The defendant Baker was’in possession under Sarah Hodge; but when she conveyed to him did not appear, as the defendant’s defence was not gone into. A trespass was proved.
    A motion for a nonsuit was made, and sustained on the ground that the plaintiffs and defendants were tenants in common, and that therefore the action could not lie.
    His Honor was of opinion that the defendant Hodge, under the deed of Peter Simmons and wife, was entitled to his interest in the land; which was of the whole of the land during his wife’s life, and at her death, of one third to him surviving, as his distributive share. An interest of one third in the land by purchase from one of the distributees of Mary Simmons, made the defendants Hodge and Baker (who held under Mrs. Hodge), tenants in common with the other distributees, the plaintiffs. He thought there was no ouster. For to the death of the wife Mary Simmons, the defendant Hodge was rightfully in possession of the whole land. Since her death, she and the other defendant holding under her, had the right to actually occupy and cultivate one third part of it. She and the other defendant had the only possession in fact; the plaintiffs never had actul possession; hence there could be no ouster.
    That it was idle to talk about the conveyance by Peter Simmons and wife of the whole land being an ouster. At the time that deed was executed, Simmons and wife could have legally conveyed the whole land; indeed, Simmons alone could have conveyed it, and his deed would have been good and legal for the life of his wife. Until her death, the plaintiffs had no rights, and a conveyance before the accrual of a right never could be regarded, in law or fact, as an ouster from a possession not yet had, under a right in expectancy.
    But if it was true that Mrs. Hodge conveyed, after the death of Mrs. Simmons, a part o'f the land to the other defendant Baker, still that could not be regarded as an ouster. She had the possession in fact; she conveyed the land and delivered the possession; her deed in law, could have no other effect than to convey her interest: her delivery of possession, or rather, the possession of Baker under her deed, did not remove any one of the plaintiffs from an actual possession; and without a disturbance of an actual possession it was difficult to conceive of an ouster.
    The plaintiffs appealed, and moved to set aside the nonsuits on the ground,
    That a tenant in common conveying away the whole interest in the premises, commits an ouster, and his co-tenant has a right to bring trespass to try title against the alienee.
    
      De Saussure & Garden, for motion.
    
      Moses & Hemphill, contra.
   O’Neall, J.,

delivered the opinion of the Court. A majority of this Court concur in the view taken of these cases by the judge below.

It is hardly necessary to add to .the argument stated in the report. Still the zeal of the counsel making the motion, and some diversity of opinion in the Court, may call for one or two further remarks.

The ground that the plaintiffs and defendants are not co-tenants, cannot, when examined, present the least difficulty. Peter'Simmons conveyed, it is true, to Mrs. Hodge, before his distributive share of one third of his wife’s real estate actually existed. But upon the accrual of his right, it passed by his deed. In the case of Ruder ads. Garey, 3 McC., 412, the principle is settled, that if a man sell land to which he has no title, or an imperfect title, and afterwards acquire a good title, he is estopped by his deed from denying that he had title. If he is estopped from denying title under his deed, it follows that that deed conveys all his subsequent interest. This made Mrs. Hodge a tenant in fee of one third of the whole land.; her conveyance of a part of the tract made Baker a tenant in fee of one third of that part. So that each of the defendants are seized of one third of the land in possession.

The notion that either of these defendants 'can be regarded as guilty of an ouster, is difficult for me to understand. They are in the quiet possession of land of which they are confessedly entitled to one third. Suppose this action to go on and let a recovery be had, can the writ of habere facias possessionem be awarded ? This must be answered in the affirmative, or the action of trespass to try title cannot be maintained. If it is answered in the affirmative, then the consequences resulting from issuing the writ will show the incorrectness of the answer. Under it the defendants, although legally entitled to the actual possession of the whole land, must be turned out, and an actual ouster committed on them, for which they can sue the plaintiffs, and in like manner expel them.

But it is a mistake, I think, to hold that trespass to try title for the whole land, even lies by one tenant in common against another. Certainly ejectment could not be so maintained ; and if so, I take it trespass to try title cannot. Lord Coke says: “Albeit one tenant in common takes the whole profits, the other hath no remedy by law against him: for the taking of the whole profits is no ejectment; but if he drive out of the land any of the cattle of the other tenant in common, or not suffer him to enter or occupy the land, this is an ejectment or expulsion, whereupon he may have an ejectione firmas for the one moiety, and recover damages for the entry.” Co. Lit. 1996. The most usual actions by tenants in common against each other, are, trespass quare clausum fregit, and waste, (or more properly speaking, an action on the case for the destruction of timber, or other spoiling of the inheritance.) In the first case, to sustain it there must be an actual ouster. To sever the estate the tenants have the proceeding in partition, in which any conflict of title or interest can be tried.

The case of Taylor & Young vs. Stockdale, 3 McC., 302, is the very case before the Court; and in that case Judge Johnson said “ that one tenant in common cannot maintain an action of trespass to try titles against his co-tenant, without an actual ouster, has been frequently laid down by this Court, and is not controverted' in the grounds of the motion.” The motion is dismissed.

Earle, J.,

dissenting, delivered the following opinion. Without undertaking to decide that the acts proved constitute an ouster,' I am not satisfied that the nonsuit was properly granted. The question was, whether the plaintiffs could, maintain trespass to try title; and this depends on the other question, whether they had been ousted by their co-tenants: for it is conceded if they had been, if there had been an actual disseisin, the action would lie. In cases of this kind, where it is clear that the title is the main ground of controversy, great latitude has been allowed to juries in presuming ouster from acts of the tenant in possession wholly incompatible with the right of the co-tenant. What shall constitute ouster, is always a question for the jury; and this proposition has been so often laid down by judges of the highest learning and ability, that it would be a work of supererogation to refer to them. And although I might-have hesitated or declined to instruct the jury that they ought to presume or infer an ouster from the facts proved, yet I think they should have- been left to draw their own conclusion. I think the case should have been put to the jury.

Butler, J., concurred in this opinion.  