(235 Fed. 465) HIGHLAND PARK MFG. CO. v. STEELE et al. 1. TENANCY IN COMMON 45-CONVEYANCE BY COTENANT OF SPECIFIC PROP ERTY-EQUITIES OF GRANTEE. While the deed of one cotenant conveying a specific part of the joint property does not give the grantee the right to the particular tract conveyed as against other cotenants, it is not void, and will be given effect in equity, if it can be done without prejudice to their interests. [Ed. Note. For other cases, see Tenancy in Common; Cent. Dig. §§ 135-137; Dec. Dig. 45.] 2. PARTITION 78-SUIT AGAINST GRANTEE OF ONE COTENANT ALONEEQUITIES OF PARTIES. A. and B., who were cotenants in a tract of land, assuming themselves to be sole owners, undertook to make partition by each releasing to the other a specific part of the land. A. thereafter conveyed the particular tract so released to him by metes and bounds to defendant's grantor. Complainants, who were also part owners of the land, brought suit against defendant alone for partition of such particular part. Held, that defendant could not by such action be deprived of its equitable right to have the entire tract valued, and A.'s share thereof set off in that part conveyed by him. [Ed. Note. For other cases, see Partition, Cent. Dig. §§ 265-273; Dec. Dig. 78.] Appeal from the District Court of the United States for the Western District of South Carolina, at Greenville; Henry A. M. Smith, Judge. On petition for rehearing. Decree modified. For former opinion, see 232 Fed. 10, 146 C. C. A. 202. C. E. Spencer, of Yorkville, S. C., and Thomas C. Guthrie, of Charlotte, N. C. (Tillett & Guthrie, of Charlotte, N. C., on the brief), for appellant. D. E. Finley and J. A. Marion, both of Yorkville, S. C., and E. M. Blythe, of Greenville, S. C., for appellees. Before PRITCHARD and KNAPP, Circuit Judges, and CONNOR, District Judge. CONNOR, District Judge. Appellant filed a petition for a rehearing of this cause, in so far only as the decision heretofore rendered, reported in 232 Fed. 10,1 disposed of what is termed the equitable defense set up in the cross-bill. The facts upon which appellant relies to sustain its equitable defense are quite complicated, and we are of the opinion were not clearly apprehended by the court. It appears that, by the deed executed by John Steele, Sr., to his son, Joseph A. Steele, November 16, 1860, he conveyed 494 acres. As construed by the Supreme Court of South Carolina in Steele v. Smith, 84 S. C. 464, 66 S. E. 200, 29 L. R. A. (N. S.) 939, and by this court in 232 Fed. 10,1 this deed operated to vest the title to the land in Joseph A. Steele upon the following trusts: One-half undivided interest for the use of his grandson, John G. Steele, for life, with power of appointment by For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes 1 146 C. C. A. 202. will, and upon failure to exercise the power to convey to the heirs of said John G. Steele. The other half was vested in Joseph A. Steele to his own use in fee. If John G. Steele failed to execute the power of appointment, it became the duty of the trustee to convey this onehalf undivided interest to the appellees, heirs of John G. Steele. If this had been done, upon the death of John G. Steele, the title to one undivided half would have been in Joseph A. Steele in fee, and the other half in appellees, as heirs of John G. Steele. Joseph A. Steele, the father of John G. Steele, however, died prior to the death of his son, leaving surviving, as his heirs, his widow, Eliza J. Steele, his son, the said John G. Steele, and five daughters. The one-half undivided interest owned by him vested in these persons, to their own use, as his heirs at law. The other one-half vested in them upon the trust declared in the deed to their father, Joseph A. Steele. On August 3, 1868, and subsequent to the death of his father, the said John G. Steele undertook to convey in fee the entire tract of 494 acres to James Pagan. This deed operated to vest in Pagan, or his grantee, Patterson, the life estate of said John G. in one-half, and his interest in the other half in fee, being the interest which descended to him, as one of the heirs of his father, Joseph A. Steele. Upon the death of said John G. Steele July 5, 1905, intestate, therefore, the remainder in the one-half interest held in trust by the heirs at law of Joseph A. Steele vested in the appellees, under the limitation set forth in the deed of John Steele, Sr., to Joseph A. Steele, or they were entitled to call upon them for a conveyance thereof. It appears that the tract was separated by the Landsford road-400 acres thereof lying on the south and west side, and the remaining portion, which is conceded to be 99 acres, on the north and east side. The executors of Patterson, claiming under the Pagan deed, conveyed the 400 acres, on the south and west side of the road, to A. R. Smith and W. B. Wilson. They obtained from the five daughters of Joseph A. Steele a deed for their interest in the entire tract of 494 acres, vesting in them an undivided five-eighteenths interest in fee in the entire tract, and by the deed of John G. Steele to Pagan, thence to Patterson, his interest in the 400 acres, as one of the heirs of Joseph A. The appellees were entitled to one-half undivided interest in the entire tract. Patterson's executors then conveyed to Amelia Pride the 99 acres lying on the east side of the road. This deed operated to vest in Amelia Pride the interest which had vested in Patterson in the 99 acres. Subsequently Amelia Pride conveyed the interest in the 99 acres which she acquired from Patterson's executors to John L. Watson. This deed vested in Watson the interest of John G. Steele, as one of the heirs of his father, Joseph A., which he had conveyed to Pagan, who conveyed to Patterson. Smith and Wilson and Watson undertook to make a partition of the 99 acres-Watson releasing to Smith and Wilson all of his interest in 27 acres thereof, described by metes and bounds, and they releasing to Watson all of their interest in the balance of the tract. Smith and Wilson thereafter conveyed by the same metes and bounds the 27 acres to the Standard Cotton Mill, and its interest in the same land was conveyed to appellant, Highland Park Manufacturing Company. Appellees brought suit in the state court against Smith and Wilson and others for partition, and recovered their undivided interest in the 400 acres lying on the south and west side of the road. Steele v. Smith, 84 S. C. 464, 66 S. E. 200, 29 L. R. A. (N. S.) 939. The judgment in that suit, eliminated the 400 acres from this controversy, leaving the appellees tenants in common with the appellant and those who represented the remaining interest in the 99-acre tract. Appellant insists that, conceding appellees to be entitled to partition, and to have allotted to them nine-eighteenths, or one-half, in value of the 99 acres, it is entitled to have allotted to it five-eighteenths of the same tract, that being the interest acquired under the deed of Smith and Wilson. It further contends that it is entitled to have the entire tract of 99 acres valued, and if the 27 acres conveyed to it, without the improvements, is not of greater value than five-eighteenths thereof, to have it allotted to the appellant. This contention was presented by the cross-bill filed by appellant, which, for the reasons stated by the special master and approved by the District Judge, was dismissed. In view of the fact that, upon the removal of the cause into the District Court, it was properly placed on the equity side of the docket, the court may so mold its decree that the equities of all parties will be conserved and administered. There is no necessity for resorting to a cross-bill. The cross-bill in the record may be resorted to for the purpose of ascertaining appellant's contention as to the facts upon which the equity is based. There are other facts referred to in the transcript upon which appellant asked permission to amend its crossbill. We do not deem it necessary to further refer to them; so far as they may become relevant in the further disposition of the case in the District Court, they may be brought to the attention of the court. It appears that, before filing the bill herein for partition of the 27 acres, appellees made some settlement with those who claimed to own the balance of the 99-acre tract. We are thus brought to an examination of the contentions made by appellant upon the first hearing, and more clearly and specifically urged upon the rehearing. It will simplify the situation to deal with the case without regard to the 400 acres, appellees having recovered their interest therein, as stated. Recurring to the position of the parties when Smith and Wilson and Watson, together with appellees, were the owners, and before the attempted partition between Smith and Wilson and Watson of the 99 acres, we find that they owned the land as tenants in common, each holding undivided interests: Smith and Wilson... Watson .5/18 .1/18 .9/18 The other three-eighteenths was outstanding in the widow of Joseph A. Steele. In this condition of the title, a decree for partition would haye been easily made. When, however, Smith and Wilson and Watson undertook to make partition by the release or conveyance by Watson to Smith and Wilson of 27 acres, by metes and bounds, as representing five-eighteenths of the entire tract, of which they were ten ants in common with appellees, an equitable element between them and the other tenants was introduced. [1] It is well settled, both upon reason and authority, that, as tenants in common are seised per my et per tout, neither of them owns, or can convey a valid title to, any specific portion of the tract so held in common. A deed undertaking to do so is held by some courts a nullity, the grantee taking no title. It is, however, now established by the weight of authority that a court of equity will treat the deed as a conveyance of such interest as the grantor or cotenant has in the land, not permitting it to operate to the prejudice of the other cotenants. This principle has been recognized by the Supreme Court of South Carolina in Young v. Edwards, 33 S. C. 404, 11 S. E. 1066, 10 L. R. A. 55, 26 Am. St. Rep. 689, in which, after stating the general rule, it is said: "Of course, such a conveyance will not be allowed to operate to the prejuIdice of the rights and interests of the other cotenants; but where it can be given full effect without injury to other cotenants, there is no reason why it should not be sustained. Such we understand to be the view sustained by the weight of the authorities elsewhere." So Mr. Freeman in his work on Cotenancy (section 199) says: "Although the deed does not impair the rights of the other cotenants, it by no means follows that they may treat it as void, or entirely disregard it. While falling short of what it professes to be, it nevertheless operates on the interest of the grantor by transferring it to the grantee. The latter acquires rights which the cotenants ought to be bound to respect. They ought not to be permitted to ignore his conveyance and treat him as one having no interest in the property." Walton v. Ward, 142 Ga. 385, 82 S. E. 1067; O'Neal v. Cooper, 191 Ala. 182, 67 South, 689. In Beale v. Johnson, 45 Tex. Civ. App. 119, 99 S. W. 1045, it is said: "The deed of a cotenant, conveying a specific part of the joint property, is not void, and a court of equity will set apart to the grantee in such deed the particular tract conveyed, if this can be done without prejudice to the other cotenants." Gates v. Salmon, 35 Cal. 576, 95 Am. Dec. 142; Holcomb v. Coryell, 11 N. J. Eq. 548; Story's Eq. Jur. 656c. The decisions appear to be uniform in holding the equitable doctrine as stated in the foregoing cases. We have not overlooked the cases cited by appellees. It would seem to follow that, upon the execution of the deed by the five daughters of Joseph A. Steele to Smith and Wilson of their five-eighteenths interest in the tract of 494 acres, they became tenants in common with appellees of the entire tract, and upon the conveyance of John G. Steele to Pagan, who conveyed to Patterson, he became also tenant in common to the extent of his interest as one of the heirs of said Joseph A. Steele. Patterson's executors conveyed this interest in the 99 acres to Amelia Pride, who conveyed to Watson, thus putting in him the interest of John G. Steele in the fee in the 99 acres which he inherited from his father, Joseph A. Steele. Appellant, Highland Park Manufacturing Company, through the Standard Cotton Mills, acquired the five-eighteenths interest in the 99-acre tract which had vested in Smith and Wilson, and was by them conveyed to the Standard Cotton Mills. Appellees were entitled to make, and according to the usual practice should have made, all of the tenants in common parties to the original suit, treating the 494-acre tract as one body of land to be partitioned. They were under no obligation to recognize the conveyances of the 99 acres and the 27 acres as separating or interfering with the integrity of the original tract, in each and every part of which they were the owners of an undivided one-half. In such a petition, in which all persons interested were parties, the court would have partitioned the entire tract, setting apart to the appellees their one-half, and to the other parties their respective interests, preserving the equities of all parties. They did not pursue this course, but, treating the 400 acres as a separate tract, of which they claimed one-half, they obtained partition thereof in the suit brought in the state court, taking no account of the 99 acres. After thus securing their interest in the 400 acres, they may have treated the 99 acres as one tract, and had partition thereof, making all persons having an interest therein parties to the record. As we have seen, Smith and Wilson, claiming under the deed from the five daughters of Joseph A. Steele and the deed from Watson, would not have been entitled, at law, to hold the 27 acres by metes and bounds, but would have been entitled to the undivided interest which they had thus acquired, being five-eighteenths. The fact that they held a deed from the cotenant for a specific portion of the land could not affect prejudicially the right of appellees to have their onehalf interest in value set apart to them; but, if it could be done without such prejudice, Smith and Wilson had an equity, which the court. would have enforced, to have the 27 acres set apart as and for their five-eighteenths interest in the entire 99 acre tract. Mr. Freeman says: "While no such grantee has an absolute right to have the part granted to him set apart to him, or his grantor, upon partition, yet he has rights which will receive the consideration of the court, and will be respected, so far as they can be, without prejudice to the rights of the other part owners. The court, however, when the interests of the other owners will not be impaired thereby, will set off to the grantees of specified parcels the tracts included within their respective deeds." Cotenancy, § 205. The learned author further says: "He is more deeply interested in partition than any of the tenants in common of the entire tract. It little matters to them where their respective portions may be located. But with the grantee of a special location it is all-important that such division will be made as will allow his deed to become operative. He is entitled to the consideration of the court, and will, whenever his claims are known to the court, be protected, as far as possible without doing injustice to the cotenants of the whole tract." Section 465. So, in Boggess v. Meredith, 16 W. Va. 29, it is said: "In making such partition, if the parcel sold and conveyed by one tenant in common" by metes and bounds "can be assigned to the purchaser as a part or the whole of the share of his grantor without prejudice to the cotenant, * the courts will so assign it, thereby making the purchaser's title perfect." |