
    Youngs v. Heffner.
    1. The statute of limitations does not run in favor of a tenant in common in the occupancy of the premises, against his co-tenant, until some overt act of an unequivocal character, clearly indicating an assertion of ownership of the entire premises, to the exclusion of the right of the co-tenant.
    A The legal presumption of death which arises from the absence of one from his home for the period of seven years, and who in the meantime is not heard of, is but prima facie evidence of the fact, and may be rebutted by counter-proof.
    •3. The plaintiff, the owner in fee simple of two undivided sevenths of a farm, liad been absent and unheard of for nearly thirty years, when proceedings for the partition of said farm were instituted by persons who would have been his heirs, had he been then deceased. Under these proceedings, the premises not being divisible without manifest injury to the value thereof, were sold by order of the court, and bid off by defendant H., owner of the remaining five-sevenths thereof, and who after said purchase made valuable improvements thereon.
    
      field, 1st. ThatH. by such purchase acquired no title to the interest of the plaintiff in said land.
    ‘3d. That in the partition of said premises the defendant H. is entitled to the benefit of such improvements, and, in making partition, respect should be had thereto.
    Appeal. Reserved in the District Court of Miami County.
    The original action was brought by the plaintiff, James H. Youngs against Henry Heffner et al. in partition. ITe asserted ■title to two undivided sevenths of the premises described. The •defendant set up title acquired by purchase and adverse enjoyment to the interest claimed by the plaintiff, alleged actual possession in himself, and prayed to have his title quieted. 'The reply admitted possession in the defendant, but denied the remaining allegations of, the answer. In the common pleas the plaintiff had judgment, from which the defendant, Heffner, appealed to the district court, where the cause was reserved for decision here on the following agreed statement of facts:
    “James II. Youngs, in 1825, inherited from his father, Samuel Youngs, the undivided one-seventh part of the land in his petition described, being one hundred and forty acres in Bethel township, Miami county, Ohio.
    “ In the year 1833, he purchased of his sister, Sarah Ann Bennett, her one-seventh part of said land, and at about the •■same time his brother, Barton Youngs, purchased four-sevenths pails of the same land from Joseph, William, David and Lavinia Youngs, the remaining heirs. Barton and James IT. thus-became the sole owners of said one hundred and forty acres, in the proportions of five-sevenths owned by Barton, and two-sevenths by James H., they holding it as tenants in common,, and being in possession thereof.
    “In 1835 James H. went to Texas, leaving his brother Barton in possession of the whole one hundred and forty acres, under an arrangement by which Barton, as tenant of James H., controlled and farmed his share of said land.
    “In 1854 Barton Youngs died, leaving his family in possession of said land, and they, or some of them, retained their interest in the same and possession thereof until 1863, at which time Henry Heffner, the defendant, became the owner of the part belonging to Barton Youngs’ heirs, and went into-possession of the whole tract. Thereupon, in December, 1863, Joseph and William Youngs, brothers of James H. (this-plaintiff), filed their petition in the court of common ¡deas of Miami county, Ohio, wherein they represented that James BL had been absent and unheard from for about thirty years, and as heirs-at-law of James Harvey Youngs they were entitled to-the one-fifth of two-sevenths of said land, and that his-other-brothers and sisters, with the heirs of Barton Youngs, and Henry Heffner (this defendant)., were entitled to the residue of said land in the several proportions in said petition named, and that they were all tenants in common in said land, and for that reason they pray partition of the same.
    “ In accordance with the prayer of this petition and on the-issue joined, partition was ordered, and neither party electing-to take the same at the appraisement, such further proceedings-were had that a sale was ordered by the court, and the premises were by the sheriff sold to defendant Heffner in August,. 1865, for the sum of $5,320. . Said Heffner subsequently sold, one-seventh to Henry Roof, his co-defendant.
    “James Harvey Youngs, the plaintiff, did not return to-Ohio until June, 1875, and had been absent and unheard of by his friends and family in Ohio for near thirty years before the filing of the petition for partition by Joseph P. and William Youngs, as set forth in said petition,’and until he returned about June 11, 1875, to Ohio. He never at any time parted, with his title to his said land by sale or conveyance, and in noway, manner or form ever consented to the sale of said land (unless the sale and proceedings on partition aforesaid divested him of his interest), and has never received nor has any one for him received any consideration therefor or in any way accepted or received any benefits from said sale. We further agree that defendant Heffner has made valuable improvements on said land to the value of fifteen hundred dollars since his purchase.
    
      “ It is further expressly agreed by and between the parties-plaintiff and defendants that this cause is submitted upon this statement of facts, with the understanding and consent of all parties that a final disposition of the case shall be made upon the pleadings in the case and this agreed statement of facts.”
    
      H. H. <& E. S. Williams, for plaintiff in error :
    I. As to the bar of the statute of limitations, see 4 Ohio St. 542; 17 Ohio St. 132; 22 Ohio St. 32; 1 S. & C. Stats. 893; 27 Ind. 78; 10 Ohio, 503; 6 Wheat. 481; 13 Ohio, 196; 10 Ohio, 513; 20 Ohio, 260; 13 Ohio, 430-453; 10 Ohio, 24;. 7 Johns. Ch. 120 ; 11 Wheat. 361; 1 Ohio St. 478 ; 10 Ohio St. 198 ; 28 Ohio St. 568.
    2. As to the title acquired by purchaser at partition sale, see 2 Ohio St. 338; 14 Ohio St. 328; 27 Ohio St. 111 ; 13 Mass. 213; 5 Strobh. S. C. 74; 15 Ohio St. 337; 31 Barb. 304; 13 Ohio, 545; 7 Ohio, 2d pt. 132; 14 Ohio, 506; 2 Ohio St. 208; 6 Ohio, 269; 9 Ohio, 120 ; 13 Ohio, 551; 19 Ohio, 218 ; 13 Mass. 213.
    
      II. 6r. Sellers and G. Morris, for defendant in error :
    1. As to bar, see Badger v. Badger, 2 Wall. 94; Piall v. Vattier, 1 McLean, 160; 2 Jacob & Walker, 1, 138-152; 1 Brown, 557; 9 Pet. 405; 2 Sch. & Lef. 637; 3 Brown Ch. 640 ; 7 Johns. Ch. 93; 6 Wharton, 481; 9 Id. 489 ; 6 Pet. 61; 5 Ohio St. 122.
    2. As to presumption of death, see 1 Ohio St. 107; 10 Ohio St. 96; 2 Stark. Ev. 457; 6 East, 85; 2 Campbell, 113; Barn. & Ald. 386.
    
      3. As to title acquired by purchaser at partition sale, see 3 Ohio, 326; 10 Ohio, 256 ; 1 Metc. 207; 2 Evans’ Pothier, 301; 1 Pick. 435 ; 3 Johns. 157; 2 H. B. 414; 6 Mass. 277.
    It seems to us that it is clear that the court in the partition •suit had jurisdiction of the subject-matter, the land; that the estate, under the sale, passed to the purchaser by operation of law. Sheldon v. Newton, 3 Ohio St. 494; Ewing v. Higby, 7 Ohio, pt. 1, 198 ; Robb v. Irwin, 15 Ohio, 689 ; Snudy v. Lowe, 18 Ohio, 368; Benson v. Celluy, 8 Ohio St. 604.
    It may be claimed, however, that the maxim, eaveat emjotor, applies to judicial sales, on the authority of Vattier v. Lytle, 6 Ohio, 478; McLouth v. Rathbone, 19 Ohio, 21; Corwin Lessees v. Benham, 20 Ohio St. 36. This, we apprehend, is true, when properly applied, that the purchaser takes the property subject to every lien, either by judgment or levy, that •could be asserted against the creditors before whose judgment the land is sold. It can have no application in cases where the allegations, of petition are such as to require proof thereof, as jurisdictional facts.
   Boynton, J.

We think the plaintiff is entitled to judgment. The premises were occupied by Barton Youngs from 1835 until his death, which occurred in 1854. From 1854 until 1863 the premises remained in the occupancy of the family and heirs of Barton, who, while he lived, occupied the undivided interest of the plaintiff as his tenant. From the death •of Barton until the defendant, Heffner, took possession in 1863, there was no adverse enjoyment by any one. The brothers and sisters of the plaintiff, under whom the defendant claims, were not in possession. It does not appear that Barton ever •claimed to have acquired any title to the plaintiff’s interest in the. premises by adverse enjoyment. The occupancy by one tenant of the common premises, however long continued, is no •evidence of the .ouster of a co-tenant. To constitute disseizin, there must be an overt and notorious act of an unequivocal ■character, clearly indicating an assertion of ownership of the •entire premises, to the denial and exclusion of the right of the •co-tenant. Freeman on Co-tenancy & Par. § 230, et seq. Nothmg of the kind appealing in respect to the possession of Barton or his heirs, the statute of limitations did not commence to run against the plaintiff’s title until 1803, from which time until the commencement of the proceedings below, but twelve years elapsed. The plaintiff’s right in the premises, therefore, was not affected by the running of the statute.

Nor was his title at all affected by the proceedings in partition, instituted by his brothers Joseph and William in 1863. Heffner acquired no further or greater interest in the property alleged to have been purchased at the partition sale, than he would have acquired by a conveyance from the plaintiff’s brothers and sisters, who, it was supposed, had succeeded to the ownership of the premises as his heirs. A proceeding in partition, in its effect, dissolves or severs the tenancy in common, and locates the rights or interests of the parties, respectively, in distinct parts of the premises, and extinguishes their title in all others. Tabler v. Wiseman, 2 Ohio St. 208. But it creates no new title, and operates only on the title or rights of the parties brought before the court.

The plaintiff was not, and from the nature of the case could not have been, a party to the proceedings for partition instituted by two of his brothers in 1863, as those proceedings and the lights therein asserted, were founded, and for their validity depended, on the assumption of his death. The alleged title or interest of his brothers and sister, which was purchased by the defendant Heffner, rested wholly on the presumption that the plaintiff was déad, such presumption being founded on the fact that the plaintiff had been absent and unheard of, for the period of seven years. Whether or not, the circumstances under which the plaintiff left his home, and remained away, as disclosed in the agreed statement of facts, were such as to authorize the presumption of his death at the expiration of seven yearn, we need not inquire, as the presumption, whenever it arises from any length of time, is but prima facie, and is wholly rebutted whenever it is made to appear that the person whose death is thus presumed, is still living. Such presumption may always be shown to be ill-founded by counter evidence (Loring v. Steineman, 2 Metc. 211; 2 Best on Ev. § 408, et seq.); or by a conflicting presumption. King v. Twining, 2 Barn. & Ald. 386.

It necessarily follows that tire sale under the proceedings in partition iu 1863, as respects the plaintiff’s right or title in the land, was void. His brothers and sisters were not his heirs, •and in no event could have been, until his death. Nemo est Aceres woentis.

The principle asserted by counsel for the defendant, that a judgment of a domestic court of record, of competent jurisdiction, is conclusive of the facts or question therein determined, between the parties and their privies, until reversed or vacated, is a correct rule of law, but entirely misapplied when used to estop one from disputing the validity of the judgment, 'who was wholly a stranger to the cause or proceeding in which the judgment was rendered, and whose rights are sought to be •concluded thereby.

So, too, the principle, that courts of equity will not favor •stale demands, would seem to be misapplied, when invoked against a party possessed of the legal title, and who is only asserting his legal rights. Larrowe V. Beam, 10 Ohio, 498; Williams v. Lambe, 3 Bro. Ch. C. 264; Collins v. Archer, 1 Russ. & Mylne, 284; Snelgrove v. Snelgrove, 4 Dess. 288; 1 Story Eq. Jur. § 64, c, note; Bispham’s Eq. §§ 39, 40.

• The improvements made by the defendant Heffner, since going into possession, should be taken into account in the partition to be made of the premises. The plaintiff should derive no benefit therefrom. To the extent that they enhance the present value of the premises, Heffner should be allowed therefor in the j>artition to be made.

Judgment accordingly.  