Does the proof show that Harriet A. Sanders,, the complainant, has sold to Arthur F. Sanders her remaining undivided sixth interest in the land in controversy? It-is among the indisputable propositions in this case, that the lands belonged equally to Ezekiel L., Arthur F., and Harriet-A. Sanders, as co-equal tenants in common, held by them under a joint deed to the three. Harriet agreed to sell to Ezekiel one-half of her undivided third for an agreed price, but no writings -were drawn, and the purchase-money was not paid. At this stage, Ezekiel agreed with Isham Robertson to sell him an undivided half interest in the lands, being his own third, to which he had title, and one-half of his-sister’s third he had agreed to purchase; and under this contract of sale, Robertson was let into possession in 1870, holdring a bond for title when the purchase-money should be paid. In 1872, Robertson having paid the entire purchase-money, Ezekiel and Harriet Sanders executed to him a conveyance of an undivided half interest in the lands. Arthur F. San
This agreement was void, and of no effect whatever, under the statute of frauds; and we must treat this transaction as -'if no such agreement had been made. — See Rev. Code, § 1862, .subd. 6.
We have, then, the case of a tract of land, owned by "three tenants in common, Robertson owning a one-half interest, Arthur F. Sanders a one-third interest, and Harriet A. .Sanders a one-sixth interest; while Robertson and Arthur F. had the possession. In this condition, in 1870, long before Robertson obtained his title-deed, and when he held .only Ezekiel’s bond to make him title to the half interest, he and Arthur F. Sanders agreed on a voluntary partition of the land into two parts, with a promise of money from Arthur F. to Robertson to equalize the shares; and they then .and there executed an agreement, signed by both in duplicate, declaring the terms of the partition. Harriet A. was not consulted, and did not sign this agreement.
It is contended for appellee, first, that Harriet A. knew of .this partition, and authorized or acquiesced in it, or after-wards ratified it; and, in support of the ratification, her delay in claiming rents, and in asserting any right to the land .allotted to Robertson for over three and a half years after the partition, during which time Robertson was making valuable improvements on his part of the land, are relied on as showing ratification. The testimony not only fails to prove that she authorized or sanctioned the partition, but it shows her positive disapprobation of it. And, on the question of ¡.ratification, the testimony and circumstances are wholly insufficient to sustain the averment. Robertson purchased ■from Ezekiel Sanders. It was his duty to inquire into, and examine the title of his vendor. If he had done so, he would have found that the title was in three, of whom Harriet A. Sanders was one. He is charged, in law, with notice of every fact, to which this examination would have led. Johnson v. Thweatt, 18 Ala. 741; Dudley v. Witter, 46 Ala. 664. But he had actual notice that she was part owner of
But it is contended that Miss Sanders estopped herself from asserting any claim to the land, by the declarations witnesses testify she made to them, to the effect that she had sold her interest to Arthur; which declarations the witnesses say they communicated to Robertson. Without stopping to inquire whether such declarations, so made to strangers, could in any case work estoppel, and whether they should not rather have induced Robertson to inquire of her the nature of her claim, it is a sufficient answer to this argument, that in every instance in Avhich she is proved to have made the declaration^, she added that he had not paid her for the land. There is-no element of estoppel in this case.—1 Brick. Dig. 796, §§: 10, 11; Barnard v. Campbell, 55 N. Y. 456.
It results from what Ave have said above, that Miss Sanders is still the owner of an undivided sixth interest in the lands in controversy, and that she is not concluded or es-topped by the partition máde by Arthur F. Sanders.
One object of the bill is to have the deed of partition executed by Robertson and Arthur P. Sanders declared void. To that deed Miss Sanders is not a party, and her name was not used in the transaction. It can not, under any circumstances, affect her interest. It is res inter alias. It opposes no impediment to the assertion of her rights, legal or equitable.. The bill, on this mere ground, contains no equity.
The bill also seeks a settlement of the. account of rents- and profits. As we have shown, Miss Sanders owns an undivided sixth in the entire premises, while Robertson owns-three times that quantity of estate. The income of the ferry, alleged to be an appurtenant of the freehold, together with its expenses, and the necessity for obtaining a license to-operate it as a public feny, render the account complicated and difficult of adjustment; and the attempt at partition,, made without the concurrence of Miss Sanders, increases the complications. The proper settlement of such an account in a suit at law, would be difficult and unsatisfactory, if not impossible. The settlement of an account like this, presents many of the embarrassing elements found in the settlement of partnership dealings, and is influenced by some of the-equities that are applied in the adjustment of partnership accounts. Justice Story, (1 Eq. Ju. § 466), says: “ Cases of' account between tenants in common, between joint tenants> between partners, between part owners of ships, and between?, owners of ships and the masters, fall under the like consid
In Darden v. Cowper, 7 Jones’ Law, 210, Chief-Justice Pearson said: “ If a tenant in common receives more than his share of the profits, by an excessive use of the property, as by wearing out the land, or by an improper use of it, as by cutting down the timber and selling it, he can not be treated as a tortfeasor, but the remedy of the co-tenant is by an action of account, or, a bill in equity for an account.”
In Leach v. Beatties, 33 Vermont, 195, the court, after speaking of the inadequacy of the remedy at common law, added : “ The only means of obtaining such an account by one tenant in common of another was by bill in the court of chancery; which court had original jurisdiction in that behalf, founded on the peculiar relation of the parties, and not at all depending on the need of discovery, and the incidental right of administering full and final relief.”
In Parsons’ Maritime Law, 103, it is said to be “ the custom for part owners of a ship to bring a bill against each other in equity for adjustment of accounts, in like manner as is done by partners.” And Story, (1 Eq. Ju. § 451), states it as a “ principle on which courts of equity constantly act, by taking cognizance of matters which, though cognizable at law, are yet so involved with a complex account, that it can not be properly taken at law.”
In Adams’ Equity, 525, it is said, with same qualification, speaking of joint ownership, “ if either of the co-owners has been in the exclusive reception of the rents, [the court of equity will] decree an account of his receipts.”—See, also, Dyckman v. Valiente, 42 N. Y. (Hand.) 549; McLellan v. Osborne, 51 Maine, 118.
Certain facts and circumstances, shown in this record, conspire to render the account unusually complicated: the improvements made by Bobertson, the income from the ferry, with its conditions and attendant circumstances, and, above all, the partition attempted by Bobertson and Arthur F. Sanders. Bobertson is clearly entitled to one-half of the income proper; and if the partition was, in fact, equal, he
While we hold above that the attempted partition between Robertson and Arthur F. Sanders did not and does not bind the complainant, yet, we are convinced that in making that partition the said Arthur F. held himself out as the owner of the entire half interest, and as having the right to make the partition. The deed of partition was color of title to Robertson, and we are convinced he held the possession in • good faith. He is, therefore, not liable for damages or rent for more than one year before the commencement of the suit. Rev. Code, § 2617; Ormond v. Martin, 37 Ala. 598, 606; Dudley v. Witter, 46 Ala. 664, 696-7.
In decreeing partition, regard should be had to the improvements made by Robertson. In these, complainant' has no right to share; and, in making the division, the lands on which the improvements were placed should be assigned to Robertson, if it can be done without injustice to complainant. If it can not be so done, then he should be compensated by an increased quantity of land, or in some other way. See note 1, Adams' Equity, 525.
If we were to attempt a decree in this cause, we might do •great injustice.
Reversed and remanded, to be proceeded in according to the principles above declared.