
    Thomason et ux. v. The City of Dayton.
    1. A recital in a deed made by one of two tenants in common, to a stranger, referring to the joint estate as a street bounding the land conveyed by said deed, cannot affect any right of the other tenant in common, although the grantor, afterwards, conveys her share of the joint estate to said co-tenant, who then sues to recover the entire joint estate.
    2. Such recital will not estop the plaintiff in such suit.
    3. A city, that, before the making of said first deed, had unlawfully seized said land and improved it as a street, can neither use said recital to estop the plaintiff, nor defeat her recovery because, for a time, inconvenience to the public will result therefrom.
    Error to the District Court of Montgomery County.
    The city of Dayton, in 1852, unlawfully took possession of a parcel of land, improved it as a street and has ever since continuously used it, as such street. From 1847 to August 8, 1876, Matilda Pickell, a married woman, held a life estate in said land, and her daughters, Ann E. Shartel and Mary C. Shartel (afterwards Thomason), as co-heirs of their father (Mrs. Pickell’s first husband), owned the fee simple in remainder. In 1854, Ann, by warranty deed, for a valuable consideration, conveyed to .one A. B. Johnson, his heirs and assigns, a parcel of land adjoining the premises in controversy, and described the parcel so conveyed as bounded by the north line of said street, naming it. Johnson sold his said parcel, in lots, to purchasers for value, who built dwellings thereon, and used said street as the only access to their homes, other than an alley in rear of their lots.
    The other daughter, Mary, became of age February 27, 1858, and, on April 7, 1858, for one hundred dollars, conveyed to her mother a parcel of land, describing its south line as parallel to said Chestnut street, and forty feet northward from it. Mary on April 8, 1858, married William W. Thomason. On November 4, 1876, her sister Ann made to Mary a quit claim deed, for certain land, including the premises in controversy. On March 15, 1877, Mary and her husband brought suit against the city of Dayton to recover possession of so much of said street as lay upon the land so inherited by and conveyed to her. The city answered denying her title and right to possession; set up the twenty-one years statute of limitations as a bar; and, by way of cross petition, alleged title in the city by “ open, notorious, continued and adverse possession for more than twenty-one years prior to the commencement of this action,” and prayed a decree quieting the city’s title “ for street purposes.”
    On trial the jury having found for the plaintiffs, the superior court overruled a motion for a new trial and gave judgment that the plaintiffs recover the land in controversy. A bill of exceptions embodying all the testimony was duly taken, and a petition in error filed in the district court. That court reversed the judgment and remanded the cause for a new trial. The plaintiffs ask this court to reverse the action of the district court.
    
      Q-eorge W. Malamhre, for plaintiff in error.
    1. There is no estoppel against any one in favor of the defendant. Bigelow on Estoppel, 252, 442; 2 Smith’s Lead. Cas., 584; Hermon on Estoppel, 18, 234, 239; 4 Comyn Dig., 203; Coke Litt., 352; 3 Bacon’s Abr., 442, 444.
    2. Washburn on Real Property, 466, 467,'487; Lamar v. Turner, 48 Geo., 329; Mackey v. Coates, 70 Pa. St., 350; Chope V. Loman, 20 Mich., 327; Simpson v. Pearson, 31 Ind., 1; Wilder v. St. Paul, 12 Minn., 192; 8 B. Monroe, 237; 8 Ohio St., 446; Walrath v. Bedfield, 4 Smith, 457; Sornbeck v. Westbrook, 9 John., 73; Clark v. Owens, 4 Smith, 434; Borst v. Corey, 16 Barb., 136, 138; 2 Coke Litt., 476; 
      Ford v. Gray, 1 Salk.,- 285 ; 6 Mod.., 44; 1 Saunders PI. & Ev., 42, 43; JeioellY. Harrington,19 Wend., 471; Sunderlin y. Struthers, 47 Pa. St., 423; Deery y. Cray, 5 Wallace, 803 ; 1 A. K. Marshall, 494, Kercheval v. Triplett; Allen y. Allen, 45 Pa. St., 468, 473; HoltY. Sargent, 15 Gray, (Mass.), 102; Walreth v. Redfield, 18 N. Y., 457; 3d Grant Cas., (Pa.), 177; 16 Cal., 100; Lansing v. Montgomery, 2 Johns., 382; Bolling y. Mayor, 3 Rand. (Va.), 563. Estoppels bind only parties and privies, and can be taken advantage of only by those who are bound by them; and to be binding they must be mutual. Griffin v. Richardson, 11 Ired. (N. C.) L., 439; Nutioell v. Tongue, 22 Md., 419; Williams v. Chandler, 25 Texas, 4 ; Braintree v. Hingham, 17 Mass., 438; Worcester y. Green, 2 Pick., 425 ; Langer v. Filton, 1 Rawle, (Pa.), 141; Griggs v. Smith, 12 N. J. L., (7 Hals.), 22; Willdns v. Dingley, 29 Maine, 76.
    There can be no estoppel where there is no privity of estate. Langston v. McKinnie, 2 Murph., (N. C.), 67. A stranger is not bound by, nor can he take advantage of an estoppel. Massure v. Noble, 11 111., 531.
    A deed creates no estoppel, except between those who are parties to it. Glidden v. Unity, 30 N. H., 104; Cottle v. Sydnor, 10 Mo., 763; Miller v. Holman, 1 Grant (Pa.)Cas., 233; Weidman v. Kohr, 4 Serg. & Rawle, 174; Schuman v. Garrett, 16 Cal., 100; Hempstead v. Bastón, 33 Mo.,. 143; 44 N. H., 71, Greeny. Davis; 32 N. Y., 455.
    It has been repeatedly decided in Ohio that as there-must be mutuality in an estoppel, one not a party to the instrument or the transaction, can not set it up. Kitzmiller y. Rensselaer, 10 Ohio St., 63; Holt v. Lamb, 17 id., 374,. 387 ; Bradford v. Beyer, 17 Id., 395; 24 Id., 150, 163, 164,. 165; 14 Id., 102, 240; 8 Id., 445-6.
    A stranger to the deed can derive no benefit from it-.. Rice y. Tavenier, 8 Minn., 279; 5 Johns., 500; Dawson v.. St. Paul Ins. Co., 15 Minn., 109, 136.
    In a writ of entry, it is not competent for .the tenant to give in evidence a deed from the demandant or his ancestor, made after the disseisin committed, to a stranger. Walcot v. 
      Knight, 6 Mass., 417 — 421; Williams v. Jackson, 5 Johns., 491, 501.
    2. There is no estoppel in favor of any one against the plaintiffs, because of the nature of the tenancy in common. Walcot v. Knight, 6 Mass., 417,421; Washburn on Easements, 89, 90, 152, 156; 17 Ohio St., 375 — 386; State v. Atherton, 16 N. H., 280; Washburn on Easements, 36, 37, 180; Scott y. State, 1 Sneed, 629; Watkins y. Peck, 13 N. H., 360, 381; 15 Conn., 423; 28 Id., 183.
    3. As to the rights of a tenant in common, see Carpenter y. Webster, 20 Cal., 150; Mahoney y. Van Winkle, 21 Id., 555; 15 Id., 183; 19 Id., 617; 21 Id., 633; 27 Id., 524; 35 Id., 576.
    One tenant in common cannot, without authority from his fellows, make a lease that will bind them. Mussey v. Holt, 24 N. H., 248; Burnham y. Porter, 24 Id., 570; 27 Id., 550, Moulton y. Robinson; WhittonY. Whitton, 38 Id., 133; 4 Conn., 495; 5 Id., 363; Creat Falls Co. y. Worcester, 15 N. H., 414; 28 Wis., 108; Marks y. Sewall, 120 Mass., 174; Painter v. Cole, 120 Id., 162; 4 Gray, 486; 99 Mass., 248; 9 N. H., 502; 7 Cush., 369; 21 Pick., 283; 2 Ohio, 113 ; 6 Id., 398 ; 9 Id., 130; 13 Id., 547.
    4. No part owner can create an easement in land. Wash-burn on Easements, 2d ed. sec. 3, chap. 1, page 37; Port-more y. Bunn, 3 Dowl. & R., 145; Collins y. Prentice, 15 Conn., 423; Marshall y. Trumbell, 28 Id., 183; Watkins y. Peck, 13 N. H., 360, 381; State y. Atherton, 16 Id., 280; Washburn on Easements, 2d ed. p. 180; Creen y. Chelsea, 24 Pick., 71; Child v. Chappel, 5 Seld., 256; Scott v. State, 1 Sneed., 629; Sehenly v. Com., 36 Penn. St., 29; Ward v. Davis, 3 Sand., 502; Centleman y. Soule, 32 111., 279; State y. ■Atherton, 16 N. H., 208; 8 Ohio St., 446; 4 Smith, 460; 12 Minn., 202-3; 19 Wend., 371; 47 Penn. St., 423; 18 N. Y., 457; 15 Gray, (Mass.), 102; 1 A. K. Marshall, 494; Watkins y. Peck, 13 N. H., 377-8; Mabie y. Mattison, 17 Wis., 1; and the California cases cited under the head, “ The right of a Tenant in Common.”
    
      
      Alvin W. Humler, city solicitor, and A. A. Thomas, for defendant in error.
    1. The grantees of Ann E. Shartell are estopped from claiming that Chestnut street is not a street as described in said deed. Dillon on Mun. Corp., § 503; WieJcliffe v. Gity of Lexington, 11 B. Mon., 162; Wisby v. Bronte, 19 Ohio St., 238; Roioen's Bxrs.y. Portland, 8 B. Mon., 236-7; Stone v. Broohs, 35 Cal., 491; Wyman v. Mayor of New York, 11 Wend., 487.
    2. The city after use, and in possession, may take advantage of and claim all such rights of estoppel held by private owners.
    See cases above cited, particularly Wisby v. Bronte, 19 Ohio St., 238.
    We do not claim that one joint owner, as to his co-tenant’s interest, or so as to affect his co-tenant’s interest, can cast any burden or servitude on a joint estate by grant. But we claim that while he can not affect the joint estate by grant, or estoppel, either, he may affect his own interest in a joint estate, by grant or estoppel. Suppose he had power to pass no such interest by grant, one may frequently be estopped to deny that he has done that which in fact he had no power to do. The co-tenant’s interest is still an undivided half of this ground unaffected by street uses; but he can onty acquire from the other the undivided half, subject to whatever burdens may have been previously imposed upon such estate. Otherwise, Mrs. Swaynie may get, in the conveyance to Johnson, by the enhanced price' received, the value of this ground, and get paid for the same thing a second time by her conveyance to plaintiff below — which is a fraud. By the rule, as we claim it, no injury is done the co-tenant, and justice is meted out to all parties. Wendell et al. v. Belano, 7 Metcalf (Mass.), 179; Varnum v. Abbott, 12 Mass., 475 ; Rising v. Stannard, 17 Id., 282; Bartlett v. Harlow, 12 Id., 348 ; White v. aSayre, 2 Ohio, 110; 6 Id., 392 ; 9 Id., 126.
    3. That when real estate has in fact become a necessary and connecting part of a public highway, and has been improved and is occupied as such, the owner of the property can not break the continuity of the highway by ousting the public from the possession of such real estate in an action of ejectment; he is remitted and limited in such case to an action for damages, the measure of damages being the value of the property. Coodwin v. Canal Co., 18 Ohio St, 179; Cooley on Torts, 45 ; B. X. & B. B. B. Co. v. Lawton, 20 Ohio St., 412.
   Grander, C. J.

The record shows a clear title in Mary Thomason, and the plaintiffs must recover unless she is estopped by her own deed to her mother, or by her sister’s deed to Johnson.

' Less than forty days after she became of age, she conveyed to her mother a lot in a growing and prosperous city, having a street front of almost one hundred and fifty feet and a depth almost equally great, for the small sum of one hundred dollars. As Mary was an infant when her father died, the grantee in this deed was the parent who had controlled her childhood and youth. In favor of such a grantee the recital referring to Chesnut street will not be permitted to estop such a grantor, without proof that the latter used that recital with knowledge of her title to the ground covered by the street, and of all the material facts bearing thereon. We do not say that even then such a recital would have any effect as an estoppel.

Ann’s deed to Johnson conveyed to him no interest or estate in any of the land in controversy. Equitably, as some courts of repute have held, Ann would be estopped from preventing the use of the street by Johnson and his grantees. But it is well settled that Ann’s deed cannot, in any way, lessen Mary’s rights as a co-heir. As Mary owned as heir of her father one-half of every inch of the ground, the land cannot be used as a street without confiscating Mary’s undivided half of the land.

Estoppels of this kind are based upon equitable considerations. But no equity against Ann can be used to destroy Mary’s inherited estate. Hence, when the court, whose aid is sought to enforce the estoppel, discovers that it is impossible to sustain it without, at the same time, depriving Mary of her clear legal rights, it finds itself without power to grant the aid sought for.

We think Mary did not lessen her rights by accepting a quit claim deed from Ann. That occurred long after the city had completed its expenditures on the street, and after Johnson and his grantees had built upon their lots. If Ann had conveyed to Johnson by metes and bounds a part of the ground within the street, her deed would have vested him with a title to the undivided half of the parcel so conveyed ; the courts holding, rightly, that in such a case no right of Mary would be affected. But an examination of the cases will show that conveyances by one owner of an undivided interest are upheld only so far as they do not injuriously affect the rights of the holders of the other undivided shares. Certainly an estoppel cannot accomplish what a deed could not do.

It is claimed, by the city, that great inconvenience to the public, and to the dwellers on the Johnson lots, will be caused by a judgment restoring to the plaintiffs possession of the ground, and that, therefore, no such judgment should be rendered. This fact does not constitute a defense to Mary’s legal claim. If it possesses any available merit, it could do no more than support an application, properly made, asking the court to delay execution. But, of course, in such case, the applicant must offer to do, without delay, everything that, on equitable principles, ought to be done to make full amends to Mary.

The judgment of the district court is reversed, and that of the superior court affirmed.  