The judgment of the court against the validity of the execution sale is based upon a conclusion of law which is incorporated in the record as follows: ‘"That the said land being owned jointly by the said heirs, together with the houses and lots in Marlin, at the date of the said levy and sale, it was incompetent to subject an undivided interest of A. P. Morris in and to said land, or a specific part thereof; that said estate could not be partitioned in fragments.”
Stating the proposition in a more general form, we understand the court to hold that if A. and B. are tenants in common of three separate tracts of land, a creditor cannot sell under execution A.’s undivided interest in one of the tracts.
This is not exactly the question which is presented in the case of Good v. Coombs, 28 Tex., 35, where it was held that the judgment *546creditor of a tenant in common was not entitled to have a distinct portion of the common estate set apart by metes and bounds for the satisfaction of his judgment. In that case the court only gave effect to the general rule which denies to a co-tenant the right to convey a specific portion of the common property to the prejudice of the other co-tenants. Dorn v. Dunham, 24 Tex., 376; McKey v. Welch, 22 Tex., 396.
The case noxv before us is of a different kind. It is not an attempt by a co-tenant (or by his judgment creditor) to have conveyed a specific portion of a tract of land in which he has only an undivided interest. It is an attempt to sell the undivided interest in one tract of land of a co-tenant who owns that tract and several other tracts in connection with other co-tenants. This, it would seem, can be done. “Thus,” says Justice Story (Eq. Juris., sec. .656c), “where A., B. and C. were tenants in common in undivided third parts of an estate comprising Whiteaere and Blackacre, and G. conveyed his interest in Blackacre to D., and his interest in White-acre to E., upon a bill filed by A. and B. for partition of the whole estate, the court directed that Blackacre should be divided into three parts, and one part should be conveyed to A., B. and D., respectively; and that Whiteaere should be divided into three parts, and one part should be conveyed to A., B. and E., respectively. In this way, consistently with the rights of A. and B,, the interests of D. and E. were, as in equity they ought to be, fully protected and secured.”
The subject is fully discussed and the authorities examined at length in the case of Butler v. Roys, 25 Mich., 53, which resembles very much the present case. It was there held that when an inheritance, consists of several distinct freeholds, a tenant in common may convey his,undivided interest in any one or. more of them; and it may be sold on execution without reference to any of the other parcels. See, also, Freeman on Co-tenancy, sec. 216.
We have not thought it necessary to discuss the other assignments, as this point is decisive of the whole case. The judgment, we think, should be reversed, and, as the case appears not to have been fully developed upon the last trial, it would, be better to remand the cause-
Reversed and Remanded,
[Opinion adopted May 9, 1884.]