GjbeeN, PjresideNT,
delivered the opinion of the Court: •
The counsel for the appellants insist, that the plaintiffs have no interest in the seventy and three-fourths acres of Syllabus 1. land, and that if they had, this suit cannot be maintained^ as the defendants in their answer deny, that the plaintiffs or any one else other than themselves, have any such interest, and expressly disclaiming the existence of a tenancy in common claim to hold this land independently and adversely.
Upon the principles on which a court of equity acts it cannot undertake to settle the title to lands between adverse claimants, unless the plaintiff has some equity against the party claiming adversely to him. See Lange v. Jones, 5 Leigh 192. And, independent of statute law, this principle applies as much in a suit for partition as in any other case. In such cases it may decide upon the rights of parties to participate in the division, but not on the simple question of the title to the lands. Stuart’s heirs v. Coalter, 4 Rand. 74. If the title of the plaintiff is admitted or clear, a bill in equity for partition is a matter of right; but if the title of the plaintiff is denied, and it depends on doubtful facts or questions of law, a court of equity would, prior to the Code of 1850, either dismiss the bill, or retain it until the right was decided at law. Straughan et al. v. Wright et al., 4 Rand. 493. But by that Code the powers of a court of equity in such Syllabus 2. case were enlarged. See ch. 24, §1, p. 526. And this has been continued in our Code. See Code of W. Va., 79, §1, p. 486. It is thereby enacted, that in the exercise of jurisdiction, in cases of partition among tenants *574in common, a court may take cognizance of-all questions ' of law which may arise in any proceedings.
Under this statute it has been decided, that if, in a suit in equity for partition, the plaintiff’s title is doubtful, the court of equity should decide the question, observing the general rules of practice in courts of equity, for the purpose of ascertaining facts, either by enquiry, or otherwise, as may be most proper. Currier et al v. Spraull et al., 10 Gratt. 145. Under this statute the right of the court in such a case as this to decide on the plaintiff’s title, even had it been purely a legal title, cannot be questioned.
Syllabus 3. Bat it is insisted, that under this statute the court of equity has not conferred on it the power to decide the validity of the legal title of the defendants, when it is adverse to that of the plaintiffs; and that, as before the passage of this statute, such title can only be decided by a court of law. 'It is unnecessary for us to consider or decide this question, as it does not properly arise in this case. In this case the defendants set up no title, which is adverse to that of the plaintiffs. It is true, the answers of several of the defendants state, that they hold this seventy and three-fourths acres of land by a title adverse to the plaintiffs, and that they have held for more than twenty years, and still hold, possession of this land adversely to the plaintiffs. But .they show no title adverse to the plaintiffs; and the possession, which they assert and prove, so far from being adverse to the plaintiffs has really been at all times in the possession of the plaintiffs themselves, or the possession of those under whom the plaintiffs claim. And it will hardly be contended, that the jurisdiction of a court of equity to make partition of land can be defeated by the mere allegation by the defendants in their answer that they hold adverse possession, when in point of fact they do not. For if this were so, a court of equity could be defeated at any time in the exercise of its jurisdiction by such false allegation in the answers of the defendants.
*575Until 1849, when James Putney obtained a patent which covered this seventy and three-fourths acres of land, there is no pretext that the defendants, or any of them, or that their ancestor, David Ruff-ner, either had, or claimed to have, any title adverse to the title of George AkLrson, under whom the plaintiffs claim. It is expressly stated by James Put-ney, one of the heirs of David Ruftner, that he and his heirs held the possession of this land claiming it under the title bond of John Alderson, an heir of George Alderson, to John Gallahan dated October 12, 1808; and it is expressly proved by David L. Ruffner, another defendant and heir of David Ruffner, that David Ruff-ner and his heirs had been in the possession of this land claiming it under this title-bond. There is nothing in this record to indicate, that prior to 1849 they had any pretense of claim to this land under any other title than this bond. They had other claims to the land conveyed by the Dickinson, Reed and Brown surveys; but they did not cover this seventy and three-fourths acres of land.
It is well settled, that the possession and claim of land by a vendee under an executory contract of purchase can not be adverse to the vendor; but he must be regarded as holding the land for the vendor and by his permission. See Hamilton v. Taylor, Litt. Sel. Cas. (Ky.) p. 444; Clarke v. McClure, 10 Gratt. 310; Williams v. Snidow, 4 Leigh 14.
The title-bond of John Alderson to Gallahan in this case on its face does not profess to convey the whole of this land, only an undivided part thereof. Its language is: “Three and one-half undivided parts of the land &c.” David Ruffner, who took possession of this land under this bond, could only take it claiming to be a tenant in common with such of the heirs of George Alderson as had not disposed of their interest. He could unde^ this bond have claimed but an undivided part of this land; and taking possession under it he necessarily recognized the heirs of George Alderson as tenants in eom-*576mon with him. After the death of David Ruffher, his heirs came into the possession of this land, claiming to hold it under this title-bond, which on its face was an agreement to sell but an undivided interest in this land; and they thus necessarily held possession of this land under one of the heirs of George Alderson, and as tenants in common with any other heirs of George Alderson who owned an interest in this land.
James Putney, one of the heirs of David Ruffner, holding the land under this Alderson title in this manner, in 1849 procured a patent from the State of Virginia for this land. But this patent thus procured, while holding or claiming to hold this land as a tenant in common with George Alderson’s heirs, could not change his possession into-an adversary possession. For where a defendant has entered under the plaintiff, and acknowledged his title as that under which he holds, ho cannot afterwards by his own act change the character of his possession, unless he makes an open and explicit disclaimer of holding under the plaintiffIs title, accompanied with the assertion of an adverse title in himself and notice to the party, under whom he entered, of such adverse claim. Whenever the act itself imports, as in this case the conduct and acts of David Ruffner did, that there is a superior title in another, in subordination to whose continuing and subsisting title the land was taken possession of, such taking of possession cannot of course be adversary to the owners of the legal title. And such possession so commencing cannot be converted into an adversary possession but by a disclaimer, the assertion of an adverse title and notice thereof to the owners of the legal title. See Clarke v. McClure, 10 Gratt. 310.
Judge Marshall in Kirk v. Smith, 9 Wheat. 241, says: “ It would shock the sense of right, which must be felt equally by legislators and by judges, if a possession, which was permissive and entirely consistent with the title of another, should silently bar that title.”
In the present case there was on the part of James *577Putney, when be obtained this patent covering this land in 1849, no such open and explicit disclaimer of his or the heirs of David Ruffner holding under this title-bond of John Alderson; accompanied ivith the assertion that his patent was an adverse title, under which he would thereafter claim, with notice thereof ,to John Alderson, or any ot the heirs of George Alderson. On the contrary shortly thereafter, on April 10, 1851, he recognizes the continued existence of the Alderson title, and enters into a contract with John Alderson for the purchase of this seventy and three-fourths acres of land of him, and agrees that he should reserve one-half of the coal on this land. This was an executory contract; and on the principles we have laid doAvn it is clear that he and all those holding under him have continued to hold this land in subordination to the heirs of George Alderson.
It is clear from these principles, that though John Alderson by this contract undertook to sell and agreed to make to James Putney a good title to all this land, yet as he held possession of it, by the occupation of the heirs of David Ruffner, only as a tenant in common with the other heirs of George Alderson, he could not by his own act convert the possession into one adversary to his co-tenants, heirs of George Alderson; for he never did any act, which could be regarded"as an actual ouster of them; and this contract of sale, without any notice to them, could not be possibly regarded as an actual ouster of them. In fact it is a contract which, if they choose to assent to it, would in law enure to the common benefit of all the heirs of George Alderson.
It is obvious from the principles I have laid down, that nothing has occurred since 1851, which can change the possession of this land by any of the defendants in this cause into an adversary possession against John Al-derson’s heirs, or the heirs of George Alderson, or any persons claiming under them. Neither the division of this land among David Ruffner’s heirs in 1858, so much relied upon by appellees’ counsel, nor any of the subse*578quent conveyances of this land, nor the tax deed made "to Shrewsbury in 1868 for the land sold in 1855 on account-of the alleged delinquency oí George AldersoAs heirs in the non-payment of taxes thereon, nor the acquisition of this title by Henry Ruffner or his heirs can have the effect of changing the possession of any of the defendants, or of other parties who have held this land, into a possession adverse to the heirs of John Alderson, or the heirs of George Alderson, or any person claiming under them; for it is not pretended, that any of these acts were accompanied by an open and explicit disclaimer by the parties of their holding under the Alderson title, or of an assertion at the time these acts were done, of an adversary title in them, and of a notice thereof to John Alderson, or his heirs, or to the heirs of George Alderson. In fact no such open and explicit disclaimer is shown, except by the answers of some of the defendants in this cause. And no notice of such disclaimer even up to this time is pretended to have been given to any of the heirs of George Alderson, except to the children of John Alderson, and to them only by their being parties to this suit. And for like reasons the tax deed made to John Hudson, assignee of Hamilton Huff, in 1878, on account of the alleged delinquency of George Alderson’s heirs in the "payment of taxes on this land, can have no effect in changing the possession of this land into an adverse possession against the heirs of George Alderson or those claiming under them.
It is therefore unnecessary and improper to consider, or decide, whether these tax deeds are, or are not, valid, and if valid, whether they, as well as the patent to James Putney, would not enure equally to the benefit of all the heirs of George Alderson. There are authorities which give countenance to this view. Thus in Pennsylvania it is held, that a purchase by one of several tenants in common of the common property at a tax sale, or under an execution issued against all, gives rise to a resulting trust for the benefit of all, though the purchaser *579was not acting as their agent, and intended "to acquire the land for himself. See Gibson v. Winslow, 10 Wright 380; Maul v. Rider, 1 P. F. Smith 377; 9 Id. 167. But the question whether these decisions are based on sound principles, and whether they are applicable so as to affect the operation of this patent, or tax deeds; it is unnecessary to consider; and I decline to express any opinion with reference thereto. It is sufficient in this case to decide, that neither this patent, these tax deeds, the partition of the land by the deed of partition of March 10, 1858, nor any of the other deeds appearing in this record, nor any other fact which has been shown, renders the possession of this land heretofore, or now, adverse to the heirs of George Alderson, or to the heirs of John Aider-son, or persons claiming under them or either of them.
If then the plaintiffs have shown that they have an undivided interest in the coal underlying this seventy and three-fourths acres of land, under the title of George Al-derson, they are entitled by this suit to have a partition of the same, when they bring before the court all the other parties who have interest in this coal.
The first enquiry is then : Have the plaintiffs an undivided interest in this coal ? They claim such interest only through the contract for the sale of this land made by John Alderson with James Putney on April 10, 1851. This contract the circuit court set aside, it is presumed, because it considered that John Alderson had in 1851 no interest in this land. If he had no interest then in this land, the. action of the circuit court was right, and the plaintiffs can have no interest in this coal, and their suit was properly dismissed.
Had John Alderson then any interest inthis George Alderson land in 1851? His father George Alderson had a good title thereto ; and after the death of his wife John Alderson inherited a portion of it as one of his heirs. From the will of George Alderson it- would appear he had six children who, it is presumed, survived him. If so, John Alderson inherited from his father one un*580divided sixth part of this seventy and three-fourths acres of land. Did he effectually part with his interest in this land by the title-bond, or agreement, made with Gal-lahan on October 12, 1808? This depends upon the question whether a court of equity would now decree a specific execution of this agreement. It is clear, that the heirs of David Ilufiner, or those claiming under them, could not ask the specific execution of this agreement. For the endorsements on this bond, or agreement, and the evidence in this case do not show, that John Gallahan ever assigned it to any person, or if he did, that David Buffner ever owned this bond, or agreement. All that- the evidence does show is, that he claimed to own this bond, and under it took possession of this land. Nor could John Gallahan, or any one claiming under him ask the specific execution of this agreement. Seventy years have elapsed since it was executed ; and the parties to it have been long dead. This alone would effectually prevent a- court from entertaining any suit asking for its specific execution, even were it such an agreement as could otherwise have been enforced by a specific execution. But it is not such an agreement; for if we assume it refers to this land, it would be void' for its uncertainty as to what portion of the land John Alderson agreed to sell. The agreement says, it was three and one-half undivided parts of the land; but it is impossible to say whether it was three and one-half one-fifth or one-tenth parts. It is therefore on its face so uncertain as effectually to prevent its specific enforcement. And if parol testimony could be received to render it certain, it is evident that no such testimony could be produced now, as seventy years have elapsed since this agreement was made. As therefore this agreement could not be ordered to be specifically executed, John Alderson must be held to have been the owner of one undivided sixth part of this seventy and three-fourths acres of land in 1851.
It is clear that he could not be held to have tbeen he *581owner oí more than one sixth of said land. It is notj pretended to be shown that he ever purchased the interest of his brothers and his sisters in this land, or that in the division of the lands of George Alderson among his heirs it was assigned to him. There is no reason to believe that any such division ever took place. On the contrary we would infer from George Alderson’s will, that this was the only tract of land which he owned, other than those he specifically devised. And this he probably did not devise, simply because, when his will was written, he forgot that he owned it, this land being then of little value.
The heirs of John Alderson therefore cannot carry out his contract to make a good title to this land to James Putney; and he had therefore a right in his answer to ask the affirmative relief of setting aside and cancelling this contract of John Alderson made April 10, 1851.. This he did, on the ground that John Alderson had a good title to no part of this land. As however John Aider-son’s heirs have a good title to one-sixth part of this seventy and three-fourths acres of land, it may be that James Putney might desire conveyance by them of this one-sixth of this land and a reimbursement to him of so much of the purchase money, and interest thereon, paid by him, as exceeded the one-sixth part of the entire purchase money to be paid by him under his contract, and the proper modification of the contract arising from this inability on the part of Joseph Alderson’s heirs to carry it out. And if James Putney should so elect, he ought still to be permitted so to do; and this cause must be remanded to the circuit court to give him an apportunity to so elect. If he does so, the heirs of John Alderson and their assigns, including the plaintiffs, to the extent to which they have acquired an interest as such assignees, will be entitled to one undivided twelfth part of the coal underlying this seventy and three-fourths acres of land at the date of said contract, instead of one-half thereof, as claimed by the plaintiffs in their bill; *582and as tbe other heirs of George Alderson, deceased, or those claiming under them, are entitled to five-sixths of said coal, and an account of- such as has been taken out by others, they must be made in such case defendants, and leave must be given the plaintiffs in a reasonable time to make them defendants by an amended bill; and in case of such election, the said John Alderson’s administrator and heirs must refund to James Putney so much of the purchase money as has been paid by him, and the interest thereon, as exceeds the one-sixth part thereof, as this contract expressly provides, that in case of loss John Alderson was to refund only in proportion to the amount lost and the price therein agreed to be given per acre. But if James Putney or those claiming under him, should, as they have a right to do in a reasonable time, to be fixed by the court, elect to have,the contract made by him with John Alderson, April 10, 1851, rescinded and annulled, the court should so do, and decree the refunding to him of the money paid by him to John Alderson under this contract, but should at the same time decree, that the defendants, who are in possession of this seventy and three-fourths acres of land or any part thereof, should restore to the heirs of John Aider-son, to be held by them for themselves and the other heirs of George Alderson or those claiming under them, this seventy and three-fourths acres of land; and should enforce the delivery of such possession by a writ of ha-beri facias possessionem, so as to restore all parties to the position in which they were when this contract of April 10, 1851, was made; and in such case, the plaintiffs’ bill must be dismissed at their costs.
But'whatever decree is entered by the circuit court, when this cause is remanded, it must be without prejudice to the plaintiffs or any of them, or the defendants or any of them, instituting any suit- or suits in law or equity, that they may be advised is proper, to enforce their rights, or supposed rights, as claimants of this land, or any part thereof, by virtue of the patent to James *583Putney, or any tax deed or deeds, or other deeds, or to enforce any rights they may respectively have against' any persons by reason of the making of the deed of partition of this land, or any other deeds or conveyances thereof, or any equities or rights which may have arisen in whole or in part from such conveyances; and and if the contract between John Alderson and James Putney be set aside, the decree then entered must be without prejudice to the heirs of John Alderson or any person claiming under them, or the heirs of George Alderson or those claiming under them, instituting any suit in law or equity, which they may be advised is proper, to enforce an account of rents and profits or of coal mined or removed from this land, without prejudice to the plaintiffs instituting any suit in law or equity, which they may be advised is proper, against the administrator and heirs of John Alderson for any claim they may be supposed to have against them or any of them resulting from the setting aside of said contract.
The decree of the circuit court of Kanawha county of December 12, 1874, must therefore be reversed and annulled; and the appellants must recover of the ap-pellees, other than the administrator and heirs of John Alderson, their costs in prosecuting this appeal; ancl this cause must be remanded to the circuit court of Kanawha county with directions to be further proceeded with upon the principles and instructions laid down in this opinion, and further on the principles governing courts of equity.
The Other Judges Concurred.
Decree Reversed. Cause Remanded.