While the equity of the grantee of one of the tenants in common of a specific portion of the land held in common has been worked out by different methods, the principle upon which the equity is based is uniformly recognized. The courts permit the deed to so operate as to effectuate the intention of the parties to it, without prejudicing the right of the other tenants in common. This is illustrated in the language of the court in Cook v. Great Northern Railroad Co., 3 Tex. Civ. App. 125, 22 S. W. 1012:

"While it has been held that the deed of a tenant in common for a portion of the land by metes and bounds is void, the recognized doctrine in this state is that such a deed will convey an equity which the grantee has a right to assert in a suit for partition, and to have the land conveyed and set apart to him in the partition, if it can be done without prejudice to the other tenants in common."

In that case one of the tenants in common conveyed a portion of the land by metes and bounds. The other tenants made partition of the residue of the tract-not taking into consideration the portion conveyed, or giving any recognition to the rights of the grantee of their cotenant. Thereafter they brought suit for partition of the portion of the tract conveyed, making the grantee party defendant. The Court (Texas) held that, in making partition of the portion of the tract not conveyed, the plaintiffs had recognized the validity of the conveyance and the title of the grantee to the portion conveyed to him, and that they were estopped from asserting any interest therein. The Supreme Court of Michigan in Pellow v. Arctic Mining Co., 164 Mich. 87, 128 N. W. 918, 47 L. R. A. (N. S.) 573, Ann. Cas. 1912B, 827, worked out the equity in the same way.

In Bigelow v. Littlefield, 52 Me. 24, 83 Am. Dec. 484, one tenant in common conveyed by metes and bounds a portion of the land. Thereafter the other tenant sought to have partition of the portion so conveyed, making the grantee party defendant. The court dismissed the petition, saying:

"Plaintiff does not ask that partition may be made of the whole tract in which she claims to be a tenant in common, but only of that portion held by the respondents; and, if she could succeed, she would take from them onehalf of the land for which her husband has been paid the full value. But she cannot succeed. When partition of real estate held in common is to be enforced by legal process, the whole tract so held must be partitioned at the same time. One tenant in common cannot enforce partition of part only of the common estate. Nor does a conveyance by one tenant in common of his interest in a part only of the land thus held authorize a cotenant to enforce partition of such part against the grantee, leaving the residue of the estate unpartitioned." Barnes v. Lynch, 151 Mass. 510, 24 N. E. 783, 21 Am. St. Rep. 470.

[2] Without regard to the particular method adopted in each case for protecting the right of the grantee of one of the tenants of a specific portion of the land, the decisions all recognize his right to be protected, if it can be done without prejudice to the rights of the other tenants. In Kennedy v. Boykin, 35 S. C. 61, 14 S. E. 809, 28 Am. St. Rep. 838, it was held that a mortgagee of one tenant in common of a specific part of the land was entitled to have the partition so made that his rights on the part covered by the mortgage should be

protected subject, of course, to the limitation that the right of the other tenants should not be prejudiced. Railroad Co. v. Leech, 35 S. C. 146, 14 S. E. 730; Jeter v. Knight, 81 S. C. 265, 62 S. E. 259, 128 Am. St. Rep. 908, in which it was said, citing former decisions. of the court, that:

"Where a tenant in common had placed a burden on the common property, justice and equity demanded that partition should be, if practicable, so made as to allot to such tenant in common the portion upon which the burden has been placed."

The equity was enforced and administered upon the same principle in Young v. Edwards, supra.

Applying the principle to the facts in this regard, it would seem that, as appellees had, by suing for and recovering their interest in the 400 acres, elected to treat the 99-acre tract as a separate part of the original tract of 494 acres, they should have sought partition of the entire 99 acres—making all persons who had any interest therein parties to the proceedings. If this had been done, Smith and Wilson, or appellant, as their grantee, would have been entitled to assert the equity to have the decree for partition so molded that, if it could be done without prejudice to the other tenants, the 27 acres for which they held a deed from the cotenant, representing five-eighteenths of the 99-acre tract, should be allotted to them. This equity is vested in the appellant, Highland Park Manufacturing Company, by the conveyance under which it acquired the title of Smith and Wilson. While it does not very clearly appear how it was brought about, it seems to be conceded that appellees have settled with those claiming or holding as tenants in common with them the residue of the 99 acres-they seeking in this suit to have partition only of the 27 acres, treating the residue as eliminated. It is manifest that appellees could not, by any settlement with those who claimed, or owned, the undivided interest in the residue of the 99-acre tract, affect the equity of Smith and Wilson, or their grantee. It may be that they have released to such persons their interest in such residue.

However this may be, as the record now appears, appellant is entitled to have the entire tract valued, and have set apart to it, in severalty, such portion thereof as represents five-eighteenths in value of the whole, unless other conveyances of portions of the tract have affected this equity. If, upon such valuation, it shall appear that the 27 acres is not of greater value than five-eighteenths of the entire tract, the decree will direct the allotment thereof to appellant; if a part thereof is found to be of such value such part should be allotted. The principle upon which the court will frame its decree is stated by Mr. Justice Story:

"Courts of equity in making these adjustments will not confine themselves to the mere legal rights of the original tenants in common, but will have regard to the legal and equitable rights of all parties interested in the estate, which have been derived from any of the original tenants in common." Eq. Jur. 656.

Appellees urge, among other objections to appellant's claim, that it will be necessary, in its administration, to bring into the record

149 C.C.A.-2

new parties-those to whom parts of, or interests in, the residue of the 99-acre tract have been conveyed. We assumed this to be true in the original opinion filed herein. In the present condition of the record it is not clear whether such necessity will arise. If, however, the court shall conclude that such parties are necessary, we see no good reason why they may not be brought in for the purpose of adjusting the equities and giving to all concerned what is justly due them. Marshall v. Beverley, 5 Wheat. 313, 5 L. Ed. 97.

It is insisted that the attempted partition between Smith and Wilson and Watson was, as to appellees, absolutely void; that the deed of release to the 27 acres by metes and bounds wrought no change in the title or status of either Watson or Smith and Wilson. If by this is meant that such deed could not operate as a conveyance, vesting the legal title to the 27 acres, in Smith and Wilson, or affecting prejudicially the rights of appellees, it is conceded to be true; but, as we have seen, this deed operated to vest in Smith and Wilson equities which could not be destroyed by appellees. They could not be enforced to the prejudice of appellees, but, within this limitation, will be protected and enforced. If it be conceded that the release or quitclaim from Watson to Smith and Wilson was entirely inoperative for any purpose, the deed from Smith and Wilson, to those under whom appellant claims, of the 27 acres by metes and bounds, brings it within the principle upon which the equity now asserted is based. It was an attempt on the part of Smith and Wilson to convey by metes and bounds a specific portion of the 99 acres of which they owned an undivided five-eighteenths interest; hence the deed from Watson to them may be eliminated from consideration, without affecting the equity asserted by appellant.

We are not inadvertent to the difficulties presented in doing so. The unfortunate misconception of the rights of the parties interested, under the deed from John Steele, Sr., to Joseph A. Steele, resulting in complications which none could anticipate, has imposed upon the court the duty of, so far as is possible, securing the substantial rights of those who have acquired, in good faith, interests in, and expended large sums upon, permanent improvements on the portion of the land which they honestly believed to belong to them. While the court will not permit the rights of appellees who are adjudged, in this suit, to be entitled to one-half in value of the 99 acres, to be prejudiced, it will not permit them, in the enforcement of such right to disturb and displace equities of appellant, based upon sound principles of justice. They have sued for, and recovered, their interest in the 400 acres, without taking into account the rights of Smith and Wilson, or their grantees, in the 99 acres. We do not hold they were not entitled to do so, but if they elected to pursue that course, and in doing so, they were doubtless well advised, they eliminated that portion of the original tract from further consideration, leaving their rights, and the rights of the other cotenants, in the remaining 99 acres to be worked out upon equitable principles.

We have given careful consideration to the interesting argument of appellees, oral and by brief. It appears to us that they fail to give

effect to the equitable conceptions upon which the court deals with the rights of parties related to the property in this case. We note the statement in the brief that Watson conveyed to Mrs. Kimbrell 18 acres of the 99-acre tract prior to the purchase by Smith and Wilson from the daughters of Joseph A. Steele. What, if any, effect this fact has on the equity of appellant, we do not perceive, and note it only because counsel attach importance to the fact.

We do not concur with appellant that, for the reasons assigned, appellees are estopped from maintaining this suit for partition of the 27 acres, nor that the bill should be dismissed because they do not ask for partition of the entire 99 acres. We are of the opinion that, for the reasons given herein, the 99 acres constitute the unit, or tract, of which partition should be made. We have not overlooked the admission in the record in regard to the value of the 27 acres as related to the remainder of the tract, but do not think such admission should be adopted as the basis for making a decree herein. The decree from which the appeal was taken, adopting the findings of the special master in regard to the value of the improvements placed on the 27 acres, by appellant and its grantor, and the rental value, directs the appointment of commissioners to make partition upon the basis prescribed, and, if they find that actual partition cannot be made to report to the court the value of the lands sought to be partitioned, etc.

This decree is affirmed, with the following modification: That the commissioner so appointed will also ascertain and report the value of the entire 99 acres, independent and exclusive of the betterments and improvements, together with the value of the 27 acres, also independent of betterments, so that the court may be advised whether said 27 acres is of greater or less value than five-eighteenths of the value of the entire tract, with such other and further information in respect to the value of said 99 acres, or any part thereof, and in regard to the title thereto, as the same has been affected by conveyance of any part or parts thereof, to persons other than the present parties to this record. That the court will, if in its opinion other persons are necessary parties to a final determination of the rights and equities of the present parties, make such orders as, in its opinion, may be necessary to bring such persons into this suit, to the end that a full and final determination of the rights of all parties in interest may be had. The motion made by appellant to amend its cross-bill is not before us. We do not express any opinion in regard to the refusal of the judge to allow the amendment. In our opinion, all questions involving the equities of the parties to any portion of the 99 acres should be considered and disposed of by the court in framing its final decree. Further proceedings will be had in the cause. in accordance with the opinion herein set forth.

Modified.

(235 Fed. 474)

MISSOURI PAC. RY. CO. et al. v. C. E. FERGUSON SAWMILL CO.* (Circuit Court of Appeals, Eighth Circuit. July 19, 1916.)

No. 4604.

1. PLEADING 369(1)—INTERSTATE COMMERCE COMMISSION-ACTION TO ENFORCE AWARD OF DAMAGES-ELECTION.

In an action against railroad companies to enforce an order of the Interstate Commerce Commission awarding reparation to plaintiff for unjust and unreasonable freight charges exacted by defendants, a motion to require plaintiff to elect on which one of two orders of the Commission it would rely was properly denied, where the second order merely modified the first in a formal particular having nothing to do with the award of damages; nor was it material that the second order did not change the date fixed by the first for payment of the award, which had already passed.

[Ed. Note. For other cases, see Pleading, Cent. Dig. §§ 1199, 1200; Dec. Dig. 369(1); Replevin, Cent. Dig. § 206.]

2. COMMERCE 95-INTERSTATE COMMERCE COMMISSION-ACTION TO ENFORCE AWARD OF DAMAGES-EVIDENCE.

Under the provision of Interstate Commerce Act Feb. 4, 1887, c. 104, § 16, 24 Stat. 384, as amended by Hepburn Act June 29, 1906, c. 3591, § 5, 34 Stat. 590 (Comp. St. 1913, § 8584, subd. 2), that a suit for damages based on an award of the Interstate Commerce Commission "shall proceed in all respects like other civil suits for damages," except that "the findings and order of the Commission shall be prima facie evidence of the facts therein stated," the plaintiff in such action may introduce evidence in addition to that produced before the Commission.

[Ed. Note. For other cases, see Commerce, Cent. Dig. § 145; Dec. Dig. 95.]

3. COMMERCE 85-INTERSTATE COMMERCE COMMISSION-JURISDICTION AWARD DAMAGES.

ΤΟ

Objections to the jurisdiction and authority of the Interstate Commerce Commission to award damages to a shipper because of unjust and unreasonable freight charges exacted by railroad companies considered, and held without merit.

[Ed. Note. For other cases, see Commerce, Cent. Dig. § 138; Dec. Dig. 85.]

4. COMMERCE

87-INTERSTATE

COMMERCE COMMISSION-AUTHORITY

ΤΟ

AWARD DAMAGES LIMITATION. Interstate Commerce Act Feb. 4, 1887, § 16, as amended by Act June 29, 1906, § 5 (Comp. St. 1913, § 8584, subd. 2), relating to awards of damages by the Interstate Commerce Commission, provides that "all complaints for the recovery of damages shall be filed with the Commission within two years from the time the cause of action accrues and not after." Held, that the filing of a complaint within such time, asking a modification of a rate and generally for reparation for all sums unlawfully collected, was a compliance with such requirement and authorized the Commission to make an award of damages, although the complaint contained no specific statement of the shipments on which reparation was claimed and such statement was not filed until more than two years thereafter and after a hearing as to the legality of the rate complained of, where no objection was made on that ground before the Commission. [Ed. Note. For other cases, see Commerce, Cent. Dig. § 139; Dec. Dig. 87.] 5. COMMERCE

86-INTERSTATE

AWARD DAMAGES.

COMMERCE

COMMISSION-AUTHORITY

ΤΟ

That other carriers, not parties to a proceeding before the Interstate Commerce Commission, participated to a small extent in the transportaFor other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes *Rehearing denied November 20, 1916.