A conveyance by one tenant in common of his interest in distinct parcels of a common estate, is valid as between the parties to it, although it will not bind his co-tenants to whose interests it is prejudicial.
DURFEE, J.
Two questions are made in this case, to wit: What interest has the plaintiff in the land in suit, by the terms of the deeds under which he claims; and, if he has any, whether he can recover against the defendant's objection.
1. We think the plaintiff is entitled, by the terms of the deeds, to three undivided sixth parts of the land in dispute. This right, so far as regards the first point, to the sixth part formerly belonging to John Field, is not disputed, and his right to the sixth part formerly belonging to Mrs. Seamans, the doctrine of title by estoppel being applied in his favor, is obvious on an inspection of the deeds. We think he is also entitled to the one-sixth which formerly belonged to Albert S. Field, though, by reason of a contradiction in the descriptive part of the deed of Elbridge G. Fairbanks to him, his right to this sixth is less indisputable.
2. The second question grows out of an objection to the plaintiff's recovery, based on the rule that one tenant in common cannot bind his co-tenants by a conveyance of his interest in distinct parcels of the common estate. This rule, however, is not absolute. Such a conveyance is valid as between the parties to it, and is voidable only in favor of co-tenants to whose interests it is prejudicial. It would not, therefore, be applied in favor of a tenant who had himself participated in such a partitionment. For instance, if one of two tenants in common should convey to the other his interest in a distinct part of the estate, the conveyance would be valid, and the remaining part of the estate only would remain for partition. So if one of two tenants in common should convey his interest in a distinct part of the estate to a third person, and should afterwards convey his interest in the remainder to his co-tenant, both conveyances would be valid, for the co-tenant could not affirm his own title under the second conveyance, without impliedly recognizing the right of the grantor thus to convey the estate by distinct parcels. This is the situation of the defendant. The plaintiff, or his predecessors, purchased three sixths of the strip of land in dispute, and the defendant, or his predecessors, purchased the corresponding three sixths in the rest of the lot. The plaintiff and defendant are both alike grantees of undivided interests in corresponding parcels of the common estate, claiming them under the same grantors, and neither of them, therefore, can assert his own, without impliedly recognizing the validity of the other's title.
The fact that the defendant is also the grantee of the remaining three sixths of the entire lot, puts him in the same position as if, being originally the owner thereof, he had purchased of the other owners as aforesaid; that is to say, it enables him effectually to affirm his title in a part of the lot, in affirming which, however, he necessarily affirms, by implication, the plaintiff's title in the complemental part, derived from the same grantors. See Great Falls Co. v. Worster, 15 N.H. 412.
We think, therefore, that the plaintiff, as owner of three undivided sixths of the strip of land in question, is entitled to possession thereof in common with the defendant, and give judgment accordingly.