38 Mo. 94 | Mo. | 1866
delivered the opinion of the court.
The land sued for was bounded on the south by a line distant one hundred feet southwardly from Spruce street ex
It does not appear that any partition had ever been made between the co-tenants. Reilly’s undivided interest in the lots of his addition had descended to some of the plaintiffs. Alfred Skinner had conveyed his undivided interest of one third in the lots Nos. 58 and 59, by the. deeds aforesaid, to different persons; and afterwards, as it would seem, supposing that there was ground unconveyed lying between the west line of the addition and the middle of the channel of the creek of Chouteau’s pond, or that his previous deeds to those persons were inoperative and void, made a deed to John W. Skinner, one of the plaintiffs, conveying his undivided interest of one third in a larger tract so bounded as to include a portion of the lots Nos. 58 and 59, bounded on the east by the supposed west line of Reilly’s addition, and west by “ the middle of the natural channel of the creek of Chou-teau’s pond as it existed when Alfred Skinner acquired said tract”; that is,' lot No. 3 of the Chouteau partition. And so, if the deeds conveying lots 58 and 59 were-valid, and called
For the plaintiffs, the court refused to instruct the jury, that the deeds, purporting to convey the undivided interest of Alfred Skinner in particular lots in a larger tract held in ' common with John P. Reilly, undivided, were void as against the heirs of Reilly, plaintiffs here; and also refused to instruct, that “ the middle of the channel of the creek in its natural bed” meant the course of the stream prior to any artificial change made in the course of the stream (if any were made); and further, in effect, that this call fixed the boundary as it was in 1832, in the description of lot No. 3 of the Chouteau partition.
It may be conceded that the rule of law is well established, that one tenant in common cannot convey, by metes and bounds, a distinct portion of the whole tract held in common with others, so as to prejudice his co-tenants or their assignees, though it would bind him, and those holding under him, by way of estoppel, and that his deed would be inoperative and void as against them, and those holding under them, though it would be valid and effectual as against himself, and all those claiming under him — 4 Kent Comm. 358; 1 Greenl. Crui. Dig. 402, n. (1) ; 1 Washb. Real Prop. 417;
These deeds, then, had no tendency to break the unity of possession, nor to injure the rights of partition in these several lots; and not being within the reason or the principle of the general rule, they must be held to have been valid and effectual against the co-tenant, as well as against the grantor, and all those holding under him. We think the instruction on this point was properly refused—Holmer v. McGee, 27 Mo. 597.
A deed which calls for the middle of.the channel of a fresh water river, or a stream expanded into a pond, makes a boundary which is in its very nature.a shifting, and not a fixed landmark. The addition of the words “ when the pond is exhausted” does not change the meaning of the call.
The plaintiffs complain more especially of the first instruction that was given for the defendant. So far as it put a construction upon the deeds, and declared the legal effect of the evidence, it was unobjectionable. If the deeds were valid in law, and called for the middle of the channel on the west (as they plainly did on their face), they conveyed all the title and interest of Alfred Skinner in the land in controversy. That being so, the plaintiff Skinner had shown no title. The only remaining question there can be is, whether the plaintiffs as they stood upon the record were, upon that state of the evidence, entitled to recover. We think not; and so the instruction told the jury — nothing more. The statute provides that where one of two or more plaintiffs fails to prove any interest in the premises claimed, the others may still have such judgment as they are entitled to, according to their rights, for the whole, or any part thereof, as if they had sued separately — R. C. 1855, p. 692, § 10. And if the
We find no error in the instruction.
Judgment affirmed.