Hanford, J.,
(after stating the facts.) I have concluded to pass the question of jurisdiction with the simple announcement that, as able counsel have, after much labor in preparation, argued the questions of fact and law involved in the merits, and submitted the case without disputing the jurisdiction of the court, I will hold pro forma that, by bringing the suit, the plaintiff has assumed a position adverse to all the defendants, and challenged them to dispute his claim, and so there appears to be a controversy between citizens of different states, and the case is one which appears to have been properly brought in this court.
Considering the many conflicting- claims, the numerous sales, deeds, covenants, mistakes, and errors made, given, and committed by the parties, and their delays and laches, the title to this tract of land is now so snarled, and equities, legal rights, and attempted frauds affecting it have become so interlaced, that it is simply impossible to adjust the rights of the parties by any method known to a court of law. The case is one requiring an application of the salutary principles of equity. I hold that the land has not been legally partitioned, either by an interchange of deeds between the co-tenants, or by parol; and it is necessary that it be now partitioned between the present owners according to the fairest plan which the court can devise, and that the court must consider all equities, and apply the rule requiring that he who demands equity *770must do equity. Freern. Cotenancy, (2d Ed.) § 505. It has not been asserted, either in the pleadings or arguments in this case, that a partition of the tract, as proposed and attempted in 1871, was unequal or unfair; and I am convinced that, as between the original 14, there could be no cause for dissatisfaction with it. The only way apparent to me by which justice can now be done, and the equities of each party respected, is by subdividing the tract as it was intended by Mathews to be subdivided, and awarding to each member of the syndicate the particular four-acre lot selected by or awarded to him or her, and heretofore claimed as his or her allotted share; and, further, to again subdivide and partition the several four-acre lots so far as necessary to confirm to the vendees of the members of the syndicate the specific ground purchased by them, respectively. I am aware that by this method of disposing of the case the court is, in effect, confirming a transaction between several parties which never became legally binding upon them; but in doing so, the court adheres strictly to well-recognized rules of equity practice. Courts of equity, in partitioning land, when it can be done without injustice, endeavor to award the co-tenants who have improved, and so increased in value, particular parts of an estate, the portions thereof embracing such improvements; and, by the same rule, to allot to co-tenants who have, by commission of waste, impaired the value of particular parts of an estate, the parts thereof so wasted. Freem. Cotenancy, .§§ 805, 509, 510. I hold that, for obvious reasons, the same rule should govern in a case where a co-tenant has sold, received pay for, and given a pretended conveyance of title to, a particular part of a tract of land, and thereby laid a foundation for adverse claims and litigation likely to be injurious to all concerned, especially if he has bound himself by covenants to defend his vendee’s title; and that 'the portion to which said adverse claims have attached should be allotted to such offending co-tenants in all cases where it can be done without injustice to the other co-tenants. Id. § 205; Emeric v. Alvarado, (Cal.) 27 Pac. Rep. 856. By this plan, Mr. Donaldson will fake nothing in addition to the fruits of his own voluntary contract, which he has heretofore received, and with which in equity he should be content; but his vendees will be protected, instead of being robbed for his benefit of 14-15 of the property which they bought and paid for. Mr. Clement and Mr. Gove will take nothing, but they have no ground for complaint in a court of conscience. The quitclaim deeds which they hold only place them in the shoes of their grantors with respect to the property, and they, if now before this court, would occupy positions similar to that of Mr. Donaldson. The plaintiff and Mr. Coulter will not take the same undivided interests which they purchased, but they will receive just what they have prayed for in this suit; that is to say, a portion of the property in severalty equal in value to their undivided interests.
In the argument it was urged, in opposition to the claims of the purchasers of the four-acre lots, or portions thereof, that they are not entitled to consideration, because by their own folly or neglect they suffered themselves to be victimized. It was insisted that, if the purchasers had *771been prudent, they would have caused an examination of the public records to be made, and sought the advice of astute lawyers, by which means they could have learned that legally their grantors were not authorized to convey the respective lots, or any interest therein greater than an undivided 1-15 thereof. I have known similar arguments to he used with equal plausibility in defense of bunco operators, and other criminals, who for profit impose upon the credulous and unwary. It is not a good argument in behalf of any party, as a justification of an attempt to repudiate his contracts or previous representations.
For the reasons stated, the court will decree that the land he partitioned among the several owners thereof according to the plan indicated; and, for the sake of accuracy in arranging all matters of detail to be embodied in the final decree, the court will appoint a commission to make tire partition, with power to incur all necessary expenses for a complete abstract of title and a plat of the ground, and, if necessary for the purpose of plaiting, may cause the land to be surveyed.
In regard to the interest formerly owned by Anna Rodney, it is my opinion that, whether her share of stock in the Workingmen’s Joint-Stock Association was bestowed by Mr. Howard as a mere gratuity, or given in consideration of favors received or expected, it was her property. Her ownership of it in her own right was absolute at and prior to the time of the conveyance of the title to the members of the syndicate. As the transaction was really an exchange of stock for land, she became the absolute owner in her own right of the interest in the land conveyed to her, as she previously had been of the stock, and Mr. Howard could not, without her consent, or any act on her part, take back his present by divesting her of the real estate for which it had been exchanged. By the decree, her portion will be awarded to her vendee, instead of the vendees of Howard.