Huntley v. . Cline

Ashe, J., (after stating the facts). We are of the opinion that the defendants J. R. and T. B. Cline had the right to set up as a counter-claim against the demand of the plaintiff, the value of the rents of the one hundred acres of the share allotted to Sarah Cline from which they had been evicted by the location of the dower upon it. *461 Although the deeds interchangeably executed between the parties for their several shares in effecting the partition made by the commissioners, were found to be only quit claim deeds, yet in partitions between tenants in common, there is an implied warranty between them that each will make good to the others any loss sustained by an eviction under a superior title. In Nixon v. Lindsay, 2 Jones Eq., 230, Chief Justice Pearson held: “In partition of land a warranty is implied because of the privity of estate.” To the same effect is Rogers v. Turley, 4 Bibb, 356; Morris v. Harris, 9 Gill, 26; and in Washburne on Real Property, 590, we find the doctrine thus announced: “If, after the partition has been made, one of the parties has been evicted of his property by paramount title, the partition as to him is defeated by his eviction, and he may enter upon the shares of the others as if none had been made, and have a new partition of the premises; and if in the case supposed, one co-tenant, after partition, is evicted by paramount title, he is not confined in his remedy to a new partition, but may rely upon his warranty, and recover his recompense for his loss by an action thereon against his former co-tenants.” If the eviction, then, gives to the party evicted a cause of action upon the implied warranty, it must follow that they may set up as a counter-claim against the demand of the plaintiff, the sum charged upon their land for equality of partition. We are, therefore, led to the conclusion that there was error in the adjudications of the Court below, in omitting to give the defendants the benefit of their counter-claim. There should have been a reference to ascertain and adjust the relative right of the several parties. To that end the case is remanded to the Superior Court of Catawba county, and a reference may be had to adjust these rights upon the basis that the land allotted to Sarah Cline, and now in the possession of the defendants, may be charged with the sums respectively charged thereon in favor of the plaintiff and Barbara Sigman, and after the several shares are thus made equal, then that the loss sustained by the defendants in *462 consequence of the eviction, be estimated, so as to effect a recompense from each of the shares pro rata, including that of the defendants, according to the extent of the loss, and such balance or balances as may be ascertained, shall be charged on the share or shares which shall be found liable therefor.. There is error, and the case is remanded so that it may be proceeded with as indicated in this opinion. Error. • Remanded.