Thomas McKey's heirs v. John Welch's Ex'x, 22 Tex. 390

Wheeler, Ch. J. It appears to be well settled, and upon good reasons, that one joint tenant, or tenant in common, cannot convey a distinct portion of the estate, by metes and bounds, so as to prejudice his co-tenant; for, to give effect to such alienations, as against the co-tenants of the grantor, would be to create new tenancies in common, in distinct tracts or parcels of the estate, held in common, to the injury of the co-tenants.

As one tenant in common has no right, on partition, to select any particular portion of the land, and insist on having his part set off in that specific portion, so he cannot convey such a right to his grantee. (Bartlet v. Harlow, 12 Mass. Rep. 348, 353, 354; Porter v. Hill, 9 Id. 34 ; Blossom v. Brightman, 21 Pick. Rep. 284; Jewett v. Stockton, 3 Yerg. Rep. 492.) “One joint “tenant, or tenant in common, (says Kent,) cannot convey a “ distinct portion of the estate by metes and bounds, so as to “prejudice his co-tenants, or them assignees, even though it may “ bind him by way of estoppel.

As against the co-tenants, such “a deed is inoperative and void.” (4 Kent’s Com. 368.) The same rule, it seems, obtains in the civil law. (1 Domat’s Civ. Law,

part 1, book 2, tit. 5, § 2, art. 6.) The purport of the deed, under which the defendant claimed, was to give a right to select and hold, in severalty, a distinct, portion of the common property, by roetes and bounds. It was, ineffectual and inoperative, to give such a right, as against the co-tenants of the grantor. But still, it seems, it would be valid and effectual to bind the grantor herself, by way of estoppel. (Bartlet v. Harlow, 12 Mass. Rep. 354; Varnum v. Abbott, Ibid. 474; Rising v.

Stannard, 17 Ibid. 282.) It may have been in this view, that the court proceeded to decree to the defendant, a right to select the two labors out of the purpart of his grantor, after it should be set apart to her. This might have been correct, if the pleadings had been so framed as to admit of such a decree; but they were not. The defendant did not frame Ms answer with any such view, or with a view to any equitable relief, to which he may have been entitled, as against his grantor.

It, therefore, was not competent to render a decree in his favor, which he had not asked, and for which there was no basis laid in the pleadings. And hence, it does not become necessary to decide, whether such a decree might legally have been rendered, if prayed for specifically, or under a prayer for general relief.

Nor is it necessary to inquire, whether the defendant might have called on the court to decree a partition of the estate, in order that his interest might be set apart to him, out of the portion allotted to his grantor; as the defendant has not sought such relief, or asked the aid of the court, to move his grantor to partition the estate between herself and her co-tenants, in order to effectuate his right as against her. The only judgment which could legally be rendered upon the verdict, was a judgment for the plaintiffs, with costs. The judgment must therefore be reversed, and such judgment be here rendered.

Reversed and reformed.