'The partition of the estate of Eliphalet Reed, father of the defendants, attempted under the authority of the court of probate, failed of being carried into effect. The return of the commissioners, if it was over signed by them, never reached the probate office, and was never accepted or recorded. And although each of the heirs may have occupied under the partition contemplated, and some of them may have conveyed their supposed shares by metes and bounds ; yet this would not have constituted a legal partition, or bind any but the grantors in such deeds; and that by way of estoppel. It is well settled *200that a conveyance by one tenant in common by metes and bounds, is void against the co-tenants. The cases cited for the defendant, are express to this point.
The plaintiff offered to prove that the defendant, Samuel D. Meed, had conveyed by metes and bounds the share, supposed to have been or intended to be assigned to him, to one Chapman, by which it is insisted he is estopped. And he is so, as to Chapman, and those claiming under him. But the plaintiff is no party to that estoppel; nor is there any privity between him and Chapman. The conveyance to Chapman is void as to the other heirs. A parol partition, between tenants in common, which is void in law, cannot be made good by a conveyance by each, by deed of his several share, by metes and bounds. Such a course of proceedings is not justified, by any right of offset existing between the parties. Although Samuel may have conveyed to Chapman more than belonged to him, and may therefore have made himself liable upon his ooveoants, he is not thereby deprived of his interest, derived by inheritance, in, the land claimed by the plaintiffs, which he has never legally parted with or conveyed.
He was then a tenant in common of the locus in quo, and no action of trespass, quare clausum, can lie against him for entering upon it. Being tenant in common of the land, he had an equal interest in the timber there standing and growing, or which may have been cut and felled thereon. At common law, each of the tenants in common has an equal right to the enjoyment of the common property. Nor will trespass lie by one against the other. As this right was liable to abuse, the statute of -1821, c. 35, sec. 3, has forbidden its exercise by any tenant in common, who has occasion to take to his own use any timber, stone, ore, or any other valuable matter from the land, without forty days previous notice in writing, to the other parties in interest. Failing to do go,, he is made liable to treble damages, to be recovered in an action of trespass. The action before us is not under the statute, but at common law. And we are very clear that it cannot be maintained against Samuel Meed,, a tenant in common, for appropriating to his own use some of the timber taken from the common land. The opinion of the Court is, that the jury were properly instructed at the trial, by the presiding Judge.
Judgment on the verdict.