Pipkin v. Allen

Scott,. Judge, delivered the opinion of the court. The question whether the plaintiffs and .defendants were tenants in common of the land in controversy was not raised on the trial in the court below ; it is not, therefore, regularly here. But we will consider whether there is any foundation for that objection. Boyle was possessed of a large tract of land. He made a deed to Russell, in which it is recited that the.said Boyle. claimed a settlement and improvement right of twelve hundred and twenty arpens of land situate on Sandy Creek, “ five hundred arpens of which have been selected by the recorder of'land titles as being ratified by the laws of Congress ; which five hundred arpens the said David Boyle and Jenny his wife have sold to James Anderson ; the [234] balance and remainder of the said tract and claim of land, being seven hundred and twenty arpens, situate on Sandy Creek as aforesaid, which said balance of seven hundred and twenty arpens, be the same more or less, as the title thereof, or of any part thereof, is or may be eventually ratified, he, the said Boyle, for the sum and consideration, &c., does by these presents grant, bargain and sell to the said Bussell,” &c. The recorder of land titles confirmed six hundred and forty acres of this tract. There is no evidence that he ever selected five hundred arpens ; indeed we know this is not so. There is, then, no description of the five hundred arpens conveyed to Anderson. The case is like that of a man’s owning a tract of land containing fifteen hundred acres, and he sells five hundred acres of the tract to another without any other description. In such case, would the deed be void for the uncertainty of the manner in which the land conveyed was described; or, ut res magis valeat quain pereat, would not the vendee hold as tenant in common with the seller, and would not the tract be divided between them in proportion to their respective interests ? Such we conceive to be this case. Bussell succeeding to the right of Boyle, stands in the same relation to Anderson that Boyle did. If there is once a tenancy in common established between the holders of the Bussell and Anderson titles, it must follow that, Metts entering subsequently on the land and occupying a portion of it adversely before any partition or division of the common land, the portion obtained by him under the statute of limitations must be the common loss of the two estates held in common. Although Brown claimed Anderson’s interest located by metes and bounds, and sold it to Hammond by metes and bounds, and Hammond a portion of it by metes and bounds to Metts, yet it is obvious that these acts could not affect those claiming Anderson’s interest by a prior right. Brown and those claiming under him could not, by their acts and declarations, affect the interests of those who were strangers. Although those claiming under Brown had located Metts on a particular part of the tract, yet they had no right [235] to do so at the expense of those who held an interest-in Anderson’s claim prior to that of Brown. Then, as the tenants of the Anderson and Russell titles had undivided interests in the confirmation of six hundred and forty acres, if a portion of the common property is lost, the loss must be borne by the tenants in common in proportion to .their respective interests. There was, therefore, no error in refusing the defendants’ instruction to the effect that Metts’ claim should be deducted entirely from the interest of those claiming under Anderson. Indeed, according to the calculation we mate, the allotment of the portions, as made by the court, was much more favorable than the rule we have laid down would warrant. Say Anderson’s five hundred arpens (rejecting fractions) was equal to four hundred and seventeen acres ; then his proportion of the loss — the entire loss being one hundred acres out of the six hundred and forty, which was all that was confirmed — would be sixty-four acre's. Russell’s interest being two hundred and twenty-three acres, the remainder of the six hundred and forty acres, after deducting the four hundred and seventeen acres, would be about thirty-six acres. This would give Anderson three hundred and fifty-three acres, and Russell one hundred and eighty-seven acres. The portion given to those claiming under Anderson by the decree is three hundred and twenty-five acres, and that to those claiming under Russell is two hundred and fifteen acres. This is an answer to the error complained of in the instruction given at the instance of the plaintiffs, by which the jury were directed that the interest of the plaintiffs in the land in controversy was five hundred arpens. We do not conceive that there is any cause for complaint on the part of the defendants against instructions numbered one and two. The two instructions, taken together, were as favorable as. the case made by the defendants would warrant. Although the jury was told by the'first instruction that they should give their verdict for the party showing the prior right, yet the second instruction.following immediately after, , and explaining the first, presented the defendants’ case in as favorable a light as they could have desired. [236] This writ of error having been sued out before there was a final judgment — the judgment being that partition be made, and no partition having been made and confirmed — will be dismissed. The other judges concur. Writ dismissed.