On Rehearing.
Station, Associate Justice.An application for a rehearing is made in this case on the ground that we have misconceived the facts or erred in the opinion, heretofore given, in holding that the appellants do not deraign title through J. C. O’Neal. There was no misconception of the facts on the original examination of the case, and, if there be error in the former opinion, it is error in declaring the law on the facts as they are.
The appellee, as was said in the former opinion, shows title to the land in controversy through a regular chain of title from the original grantee.
To avoid that title appellants sought to show that they were purchasers from the children of the original grantee, without notice that he had conveyed the land to a person through whom the appellee claims. We held in the former opinion that the appellants not only failed to show that they were innocent purchasers, but failed to show that they were purchasers at all. ■
The grounds for that opinion we will now give more fully than we did in the original opinion.
The land in controversy is the south half of three hundred and twenty acres of land patented to S. K. Woodson. Ephraim Woodson and Margaret Forshee were the only children of the original grantee. The defendants offered the following evidence:
*212I. The patent and proof of heirship already referred to.
II. Deed from Ephraim Woodson to W. H. Hensley to an undivided one-half interest in said three hundred and twenty acres, dated February 26, 1872, filed for record April 25, 1872. This is claimed to be a quit claim deed.
III. Deed from W. H. Hensley to J. M. Griffin to an undivided one-half interest in said three hundred and twenty acres, dated February 26, 1872, filed for record April 25, 1872. Warranty.
IV. Deed from J. M. Griffin to W. M. Patterson to an undivided one-half interest in said three hundred, and twenty acres, dated March 2, 1874, filed for record March 2, 1874. Warranty.
V. Deed from W. M. Patterson to J. 0. O’Neal to an undivided one-half interest in said three hundred and twenty acres, dated September 1, 1875, filed for record September 1, 1875. Warranty.
VI. Deed from Margaret Forshee and her husband, John W. Forshee, to Joseph W. Farrier to an undivided one-half interest-in said 320 acres, dated January 12, 1872, filed for record February 2, 1872. Warranty.
VII. Deed of partition between J. O. O’Neal and Joseph W. Farrier, dividing said three hundred and twenty acres of land between them, dated July 12, 1876, filed for record July 12, 1876. Warranty.
VIII. Defendants proved such facts as would show that they have whatever interest in the land Farrier acquired, and nona other.
In the former opinion the deed from Mrs, Forshee*was held inoperative, because not shown to have been properly acknowledged. The correctness of that opinion is now conceded by the appellants.
From this statement it will be seen that the appellants have no title, unless the partition deed between J. C. O’Neal and Joseph Farrier confers upon them some right. The deed between O’Neal and Farrier is not set out in the transcript, and the following is the statement made in reference to it:
“The deed from J. C. O’Neal to Joseph W. Farrier, dividing and partitioning said three hundred and twenty acres of land between said O’Neal and Joseph W. Farrier; deed dated July the twelfth, A. D., 1876; filed for record in the county clerk’s office, Hunt county, Texas, July twelfth, 1876. This also being a deed with full warranty.”
*213It is at once apparent, as no title passed to Farrier by the deed from Mrs. Forshee, that the appellee owns at least an undivided interest in the land sued for, even if the deed made by Ephraim Woodson to W. H. Hensley be such as will enable persons claiming under it to hold as innocent purchasers.
So far as we can know, from the record, O’Neal may have conveyed to Farrier, in partition, the north half of the three hundred and twenty acres, of which the south half is in controversy in this case; and if this was so it would be conclusive against the appellants. Whether so or not, it was the duty of the appellants to show; they do not show even that O’Neal conveyed to Farrier, in partition, the land in controversy.
But we do not wish to dispose of the case upon this ground; nor was it so disposed of on the former hearing, but upon its merits, on the assumption that, in partition, O’Neal conveyed the land in controversy to Farrier.
O’Neal and Farrier supposed that each of them owned the entire tract, and they wished to divide it, that each might hold in severalty one-half. They attempted to do so, but their attempt was futile, because one of them had no title. A partition of land between one who owns an undivided interest in it and one who owns no interest whatever is necessarily no partition, and neither confers upon one nor takes from the other any right, it matters not what may be the form of the instrument by which the intent to partition is evidenced.
The very basis for partition is co-ownership, and, when this does not exist, the instrument which attempts partition is simply void. In the case of Dawson v. Lawrence, 13 Ohio, 546, it appeared that Houston and Smith, supposing that they owned, as co-tenants, a tract of land, divided it, and executed, the one to the other, deeds for the several parts, as they had agreed. These deeds recited moneyed considerations.
Smith and Houston each sold to other persons the parts of the land deeded, and it was subsequently ascertained that Houston had no title at the time partition deeds were executed. The court held the partition void, and, in disposing of the case, so clearly states the law applicable to this case that we here assert a part of the opinion: “If Houston’s purchasers take his title only, they stand in his place and are bound by what binds him. But they seek, with much ingenuity, to grasp an equity as meritorious as that of the purchasers from Smith, from the peculiar form which Smith and Houston adopted in their division. That *214form consisted in mutual deeds of bargain, sale and release, for a consideration in money. They thence insist that this was not a simple extinguishment of interest, like a deed of partition or mere release, but a positive, affirmative, conveyance, by which Smith sold a part of his land to Houston and Houston sold a part of his land to Smith, so that each purchaser from Houston may trace a part of his title to Smith, and each purchaser from Smith can trace a part of his title to Houston, and, consequently, the condition of each purchaser, deriving his title from the same source, is equally meritorious.
“We can not admit this to be the true interpretation of this transaction. The parties did not intend to acquire new rights, but to regulate the manner in which subsisting rights were to be enjoyed. Smith did not contemplate acquiring any title from Houston, nor to communicate to him any of his own, nor to share with Houston nor with Houston’s grantees, the benefits of warranties from his own grantors. But a simple partition, by release, was all the parties meant, as they specified in the recital, and no one is liable to be misled by the nominal money consideration, or by the use of the words ‘ bargain and sale,’ in this connection. The parties to those deeds lost nothing and acquired nothing except defined boundaries to the land they previously held in common. The purchasers from Houston, therefore, are not authorized to rely upon this act as anything except a partition—defining boundaries, but conferring no title.”
It is claimed, however, that per force of the warranty ©f O’Heal, such interest as he had in the land in controversy passed to Farrier, and that the latter thus became the owner of half of it, if O’Heal owned an undivided half of the entire grant.
We do not see how a covenant of warranty can be made to have an. effect on the title which O’Heal may have held at the time he made the warranty, which can not be given to the deed containing the warranty. A covenant of warranty is sometimes made available against a warrantor and his heirs by holding that it passes an after acquired title, or estops the warrantor and his heirs to assert it; and it is also made available as a contract to indemnify a vendee on failure of title.
If this was a contest for title between O’Heal and Farrier, the former claiming under an after acquired title, or by reason that the partition attempted between them had failed for want of such title in Farrier as would enable him to make partition, or were it an action by Farrier against O’Heal on his warranty, it *215certainly could not be held under the evidence of right which Farrier would exhibit by the deeds under which he claims, that O’Neal was not entitled to recover the land in the one case, or that he was liable on his warranty in the other, for no consideration existed to support the deed containing the warranty.
A contract of warranty, like other contracts, must have a consideration to support it. Farrier parted with nothing if he acquired nothing through the instrument executed by Mrs. Forshee. A purchaser from Farrier must trace his title through the paper signed by Mrs. Forshee, and through the partition deed. The first would give him notice that Farrier acquired no title, and the latter that this invalid claim was the sole basis for the latter, and that Farrier was not a purchaser for value from O’Neal, but one who claimed to be a co-tenant, whose sole right depended upon the actual existence of that relationship between him and O’Neal.
It would be useless, in this case, to consider the several theories under which it has sometimes been said that the deed of a warrantor, as against himself and heirs, will pass an after acquired title, and which, in some cases, has been said to estop the warrantor and his heirs from asserting an after acquired title; for all these theories are based on the fact that a covenant of warranty, founded on a valuable consideration, and hence binding on the warrantor, exists.
Rules upon this subject have been adopted to sustain rights and to prevent injustice; but no technical application of them can be made for the purpose of creating rights where none exist, and to perpetrate a wrong.
There is nothing in the record tending to show that O’Neal conveyed or intended to convey to Farrier any title or estate which he may have held through the conveyance made by Ephraim Woodson, nor that Farrier paid or promised any consideration that would support such a conveyance, and it is, therefore, unnecessary to consider the effect of the conveyance under which O’Neal claimed.
The appellee shows title, and no effect can be given to O’Neal’s warranty, which can pass to Farrier, or to any person claiming under him, any part of the title or estate thus held by him; nor can that warranty operate as an estoppel against him, for he was not a party to it, and does not claim or hold through any person who was. The motion for rehearing will be refused.
Opinion delivered December 21, 1886. Motion overruled.