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Where one of two tenants in common of the mineral rights under land, conveyed the surface, of which he was sole owner by warranty deed, not excepting any mineral rights, and the cotenant, subsequently, with knowledge of the equities of the grantees under his deed, effected a partition of a large and valuable portion of the remaining estate which they held in common, by a lease for a long term of years, in which both tenants joined, and under which enormous quantities of the ore underlying the surface of such remaining estate were removed, their joint action ratified the deeds of the cotenant by so treating the remainder of the tenancy in common as to injure the equities which the deeds created, and which, except for the partition, could have been enforced against the grantor's share of the estate. OSTRANDER and BLAIR, JJ., dissenting.
Since the cotenant indicated by his acts that the unwarranted deed of the grantor was ratified, no action on the part of the grantees was necessary to perfect their title, until a claim was set up to their interest by the successors in interest to the nongranting cotenant, and they are not chargeable with laches for failure to take action until such claim was made.
15. DEEDS-QUITCLAIM-GOOD FAITH.
The grantee in a quitclaim deed is not a bona fide purchaser and takes no more interest than the grantor has to convey.
16. REAL PROPERTY-DESCENT-GOOD FAITH.
Heirs can receive no greater estate or maintain no greater claim than their ancestor had.
Appeal from Marquette; Stone, J. Submitted May 4, 1909. (Docket No. 55.) Reargued June 30, 1910. Decided December 7, 1910. Rehearing denied April 1, 1911.
Bill to quiet title by Samuel Mitchell and others against the Arctic Iron Company and others. Thomas Pellow and others, as trustees of the will of Samuel Mitchell, deceased, were substituted as parties complainant in the stead of Samuel Mitchell. From a decree for defendants, complainants appeal. Reversed.
Ball & Ball, A. C. Dustin, and Horace Andrews, for appellants.
S. W. Shaull (A. B. Eldredge and Moses Hooper, of counsel), for appellees.
BROOKE, J. The decision in the court below contains the following language:
"There seems to be force in the position of the defendants, that, because of the manner of dealing with the property herein involved by the complainants and their grantors for over 40 years, these lots 1 to 13 should be treated now as separate and independent estates.'
What the grantees of Harvey actually did, was to enter into possession of the specific parcels conveyed to them with full warranties of title by Harvey. They cultivated the lands, paid taxes upon them for upwards of 40 years, conveyed rights of way to railroads crossing them, reserving title in themselves to all the minerals thereunder, and finally conveyed them with the same warranties as to title they had received from Harvey. These acts, so far from indicating an intention on the part of Harvey's grantees to acquiesce in a new cotenancy with Reynolds in the individual parcels, clearly show that they intended to buy from Harvey the whole title to the lands described, believed they had so purchased, and constantly asserted ownership to the whole thereof. Aside from the record testimony upon this point, the oral testimony of Cæsar Charles, one of the original grantees of Harvey, and the only one whose testimony was taken, places the matter beyond dispute, and I think it is equally clear that neither Reynolds nor his grantees considered that a new cotenancy had been created by Harvey's deeds, for the record fails to show that during the entire period elapsing since those deeds were made, any effort had been made by any of the owners of the Reynolds interest to pay their just proportion of the taxes. These facts are adverted to, not as in any manner bearing upon the claim of complainants to title by adverse possession, which is untenable, but as
indicating the acquiescence of Reynolds in the acts of Harvey. Again the learned trial judge says:
"If Harvey had the right to plat the property and sell what he owned, as it seems to me he had, this operated to segregate the property from the mass, without any act on the part of Reynolds.'
This statement of the law is quoted by my Brother OSTRANDER, and upon it he says decision may be safely rested. No authority is cited either by the learned trial judge nor by my Brother in support of this proposition.
By what right may a tenant in common carve out a parcel of the common estate and convey his interest therein to a stranger, thus creating a separate freehold and a new cotenancy between his grantee and his nongranting cotenant? I know of none. If Harvey could subdivide a small tract of the common estate into six-acre lots, and by conveying his interest therein to third persons thus create independent cotenancies between each of his grantees and his own cotenant, it is entirely obvious that he might subdivide the entire 1,400-acre tract into lots, not of six acres, but of one acre, or even less, and by conveying each separate lot to a different individual, he could thus create 1,400 or more new cotenancies between his grantees and his cotenant. Simply to state such a proposition is to refute it, and yet, in principle, such a course would in no wise differ from the course he followed. Harvey's deeds warranted the title, not to his interest, but to the whole estate described therein. Those deeds, as between his grantees and Reynolds, were just as ineffectual to pass his interest in the specific parcels described as they were to pass the entire title. To give them effect as conveyances of Harvey's interest in the parcels described, Reynolds' assent would be just as necessary as it would be to give them effect according to their tenor.
Defendants now say they are operative to convey the individual interest of Harvey. How did they become so? No act of Reynolds is pointed out as recognizing Harvey's
right to convey his interest in these parcels by him carved out of the common estate, which cannot with equal force be urged as a ratification in fact of the entire transaction.
The bill of complaint alleges, and the answer admits, the cotenancy of Harvey and Reynolds in the minerals underlying the entire 1,400-acre tract. The southeast quarter of section 6, from which Harvey sold, by metes and bounds, the three six-acre parcels here in question, lies in the heart of this tract, wholly surrounded by other lands held in common. This situation is wholly at variance with the facts in Butler v. Roys, 25 Mich. 53 (12 Am. Rep. 218), upon which defendant relies, and which was followed in the lower court. There the court said:
"The lots in question in these actions of ejectment all belong to the Governor and Judges plat of the city of Detroit and are separate freeholds."
There the subdivision was an ancient one, with the making of which none of the parties had anything to do. It is not to be questioned that cotenants, acting in concert, may subdivide a portion of the common estate, and thus create separate freeholds, an interest in any one of which might be sold. See authorities citied in Butler v. Roys, supra, but this is no authority for saying that one of two cotenants may alone accomplish such a severance.
A cotenant may sell and convey the whole or any aliquot part of his undivided interest in the whole property, but he cannot, without the consent of the other, convey an undivided interest in any specific parcel of the common holding, nor can he, without such consent or subsequent ratification by his cotenant, convey by metes and bounds a specific parcel of the common estate and thus sever it so as to bind the nongranting cotenant. Freeman on Cotenancy, § 199; Tiffany on Real Property, § 170; Porter v. Hill, 9 Mass. 34 (6 Am. Dec. 22); De Witt v. Harvey, 4 Gray (Mass.), 486; Adam v. Iron Co., 7 Cush. (Mass.) 361; Staniford v. Fullerton, 18 Me. 229; Lessee of White v. Sayre, 2 Ohio, 110. But where one cotenant assumes to convey in fee, by metes and bounds, a parcel
of the common estate, as Harvey did in the case at bar, his deed is not void, but it creates equities in his grantee which will be protected and enforced so far as is possible without injury to the nongranting cotenant.
Mr. Justice MONTGOMERY, speaking for the majority of the court in Mee v. Benedict, 98 Mich. 260 (57 N. W. 175, 22 L. R. A. 641, 39 Am. St. Rep. 543), said:
"But it seems the more correct way to state the result of the authorities is that such a conveyance is good as between the parties to it, but that it is not to be permitted to affect injuriously the rights of the cotenants. This results in nothing more than that, on partition, the cotenant shoul be entitled to partition, precisely as though no conveyance had been made. But it seems to me a manifest perversion of justice to say that, because the law declares that the cotenant may not have his rights injuriously affected by such a conveyance, he may profit by the fact that he is a cotenant, and that circumstance shall enable him to defeat the right vested in the grantees of his cotenant."
Freeman on Cotenancy, § 199, says:
"Although the deed does not impair the rights of the other cotenants, it by no means follows that they may treat it as void, or entirely disregard it. While falling short of what it professes to be, it nevertheless operates on the interest of the grantor, by transferring it to the grantee. The latter acquires rights which the cotenants ought to be bound to respect. They ought not to be permitted to ignore his conveyance, and treat him as one having no interest in the property."
Again, at section 205, the same author says:
"But while no such grantee has an absolute legal right to have the part granted to him set off to him or to his grantor upon partition, yet he has rights which will receive the consideration of the court, and will be respected as far as they can be without prejudice to the rights of the other part owners. The court, wherever the interest of the other owners will not be impaired thereby, will set off to grantees of specified parcels the tracts included within their respective deeds."
If Reynolds had instituted proceedings for partition of