Earles v. Meaders

Burton, Special J., delivered tlie opinion of the Court. The action is ejectment, brought by the plaintiff in error, who was also plaintiff below, in the Circuit Court of Warren County. Several questions seem to have been made in the progress of the case. But the only exception taken to [249] the action of the Circuit Judge, was in admitting as evidence, over the plaintiff’s objection, a deed for the land in dispute, made by the Sheriff of Warren County to the defendant, Meaders. The facts necessary to make intelligible the ruling of the Court are as follows: The land conveyed by this Sheriff’s deed was part of the lands descended to the plaintiff and her sister, one Martha Drake, from their father, Joseph England, and which was allotted to his widow, Lucy, as her dower. There was never any partition made of the dower between the plaintiff and Martha Drake. But after the life-estate of the dowress had terminated, and on the [9th day of October■, 1865, the plaintiff, Nancy, conveyed by deed the eastern half of the dower tract to her sister, Martha Drake. It was doubtless intended between these sisters that this deed was to. operate as a partition of the dower tract, and that the plaintiff was to hold the remaining part in severalty. But it does not appear that, in point of fact, Martha Drake ever made any deed to her sister of the remainders of the tract. After the execution of this deed, the defendant, Meaders, obtained a judgment before a Justice of the Peace against the plaintiff; execution issued on it, which was levied upon all of the dower tract not embraced in the deed from the plaintiff to Martha Drake. The land was sold under an order of condemnation issued from the Circuit Court of Warren County, and was bought by the defendant, Meaders. And it was the [250] deed made by tbe Sheriff, in pursuance of this purchase, that was objected to as evidence by the plaintiff. The ground that appears to have been assumed by the plaintiff’s counsel was, that she and Martha Drake were tenants in common of the whole dower tract when the levy and sale of part of it was made, and it was assumed that this levy and sale were void, for the reason that part of a tract of land in common can not be levied upon and sold by metes and bounds under process against one of the co-tenants. The case of Jewetts, lessee, v. Stockton, 3 Yerger, 492, decides that one tenant in common, before partition, can not convey his interest in a particular part of the land held in common by metes and bounds, and the Court rests its decision mainly on the authority of Bartlett v. Harlon, 12 Mass. Rep., deciding that an execution against one holding lands in joint tenancy, or tenancy in common, can not be extended on a part of the lands so holden by metes and bounds. And the reason given for this decision is, that' if effect were given to the deed in the one case, or the levy and sale in the other, then a partition would be made without the co-operation of the other tenant. Conceding that the principle of this case is applicable to the case in hand, it by no means follows that His Honor, the Circuit Judge, erred in admitting the deed in evidence. It being made in pursuance of a sale by ■ the Sheriff, in a cause to which the plaintiff was party, it was admissible as evidence, the [251] effect to be given to it -when admitted being a different question. But we tbink that the principle decided in the case of Jewetts, lessee, v. Stockton, above referred to, has no application in this case. When the Sheriff's deed was offered in evidence, it was conceded that it purported to convey by “metes and bounds” one-half of the dower tract of land. But it was also admitted, as appears from the bill of exceptions, that before the levy and sale the plaintiff had conveyed the other half of the dower tract to her sister, Mrs. Drake. We think that this conveyance, so made to Mrs. Drake, destroyed the joint tenancy between the plaintiff and Mrs. Drake as to that half, and left them tenants in common of the remaining half, which is the land in suit. The point decided in Jewett v. Stockton has no application to this conveyance, as of course the tenancy in common as to the premises conveyed, was severed by the consent of both tenants. And the levy was not made on part of this remaining half by “metes and bounds,” but on the whole of it. The levy makes no mention of the plaintiff's interest being an undivided moiety, nor does the Sheriff's deed, but we do not think that either is void on that account. The deed then made by the Sheriff having passed to the defendant, Meaders, the plaintiff's interest in the land, of course she has no title to assert in this action. It is insisted that the evidence greatly preponderates against the finding of the jury upon the question of boundary. But we do not think that, under the [252] well settled practice of the Court, we can disturb, the verdict for this reason. We find no error ’in the record, and the judgment of the Circuit Court is affirmed.