This was a bill on the part of tenants in common to set aside tax deeds under which their co-tenant claimed land in severalty, and for partition between them. The defendant relied upon a tax deed and a decree confirming the same as to a part of the land, and upon a subsequent tax deed and the statute of limitations as to all of it. If the defense upon either of the latter grounds be sustained, it dispenses with the consideration of the former; and we proceed to consider them. There are two adequate objections to the plea of limitation.
1 when possession of co-tenant not ad— verse. , In the first place, there is no proof that the defendant ever held the actual possession of the land; and in the A second place, if he had such possession, it would be construed as the common possession of all the co-tenants until he did some act of ouster to notify the others that his possession was exclusive. 33 Cent. L. J., 296; Freeman, Cotenancy and Partition, sec. 373 et seq,; Angelí on Lim., sec. 420. There is not only no evidence of the defendant’s exclusive possession, but there is no proof that he openly asserted any exclusive right; neither is shown by proof that he placed upon record a tax deed taken to himself alone— without proof that his co-tenants knew of it, or that they knew he claimed to hold under it.
2. Taxsaie;of several tracts in-. 1 a body, The title asserted under the deed itself is of as little avail. _ . 111- • /-11 n By the recitals of the deed four sections of land severally assessed were sold in a body for the sum of the taxes due upon all. Each section was thereby sold for the taxes due upon each of the others as much for the taxes due upon it. Such a sale is absolutely void, for the collector has no more authority to sell one tract of land for a tax due upon another than for a store account or other ordinary debt. It is said in the argument that although the deed recites a sale in a body for separate taxes, in fact the tracts were sold separately for the taxes düe upon each, and that the deed should be corrected to conform to the facts. Two conditions indispensable to a grant of such relief are wanting—pleading and proof to justify it.
3. Effect of purchase at tax sale by co-ten- . Against the former tax sale, which covered only.a part of the land, it is. urged that the sale was void because it was made to a tenant in common, whose attempted purchase amounted to no more than .the payment of the taxes. As the interests of the co-tenants were assessed, taxed and sold together, the sale was occasioned alike by the default of each party. Whether either might have paid his pro rata of the tax and upon the sale.of the other’s undivided interest purchased it, is a question not presented nor considered. For as the defendant did not pay his part of the tax, but suffered default as to it, and made it necessary that his interest be sold with that of the plaintiff, his purchase amounted to nothing more than the payment of the tax, and gave him no right except to demand contribution from his co-tenant. The authorities upon the subject are too numerous for reference, but we adopt the views of the Supreme Court of Michigan, as expressed in Page v. Webster, 8 Mich., 263; see Maul v. Rider, 51 Penn. St., 377; Freeman on Co-tenancy and Partition, sec. 158; Cooley on Taxation, p. 500; Brown v. Hogle, 30 Ill., 119; Moore v. Woodall, 40 Ark., 42.
4. Tax sale— Description. The. complaint does not question the jurisdiction of the . - court m the proceedings to confirm the tax title, or assail the decree of confirmation for fraud or upon any other recognized ground. It is therefore binding upon the plaintiffs though erroneous upon the facts, and the injustice that it does adds but one more instance of injustice to property owners flowing from decrees rendered upon constructive service. The legislature seems to have thought that the public policy subserved by such proceedings outweighed the wrongs done to individuals, and we cannot review its judgment or avert consequent hardships. The plaintiffs are entitled to no interest in the lands embraced in the decree of confirmation, but are entitled to their interest in such of the lands embraced in the tax sale as were omitted from the decree. ■ As the plaintiff in that case obtained an inequitable and unjust decree, it is by no means clear that it should in any case be corrected so as to cure mistakes made in entering it prejudicial to him; but the pleadings and'proof present no case which calls for the determination of that question, and the effect of the decree will be restricted to the lands described in it. The description of the lands in the decree is sufficiently definite and certain. It indicates the corner of the legal subdivision from which the part sold was to be taken and the number of acres in the part. As the law provided that the part should be laid out in a square, that was sufficient to locate the part sold.
5. construetion of deed. A grantor who owns an undivided four-fifths of a tract of . land, and conveys “a full half-interest in all the right, title and interest in and to” the land, conveys an undivided half interest in the land, and not in his interest. The terms of the grant are unusual, but we think they were employed to make it plain that a “full half interest in all the title” passed by the conveyance, as distinguished from a half of the grantor’s interest. The deed contains covenants of general warranty, and it must be presumed that they were inserted for some purpose; but if the thing granted was only one-half of the grantor’s interest, the covenant was nugatory; for if the grantor had nothing, the deed only purported to convey one-half of nothing, or if he had any interest, its purport was to grant half of whatever his interest might have been. With such a description of the thing granted, covenants are meaningless ; but we do not think this a reasonable interpretation of the deed. It was intended to convey a full half interest in the land, and to warrant the title thereto.
An amended bill alleged that the defendant had cut and sold timber and received rents from the land. Of these facts there is no proof, and the plaintiffs are entitled to no relief on that account.
6, contribuants.by 00'ten‘ The defendant has paid taxes upon the land since and including 1861, for which the plaintiffs’ interest was, bound; the plaintiffs should pay him their portion of all sums thus paid, with interest at the rate of 6 per cent, from the respective dates of such payments, and the same should be made a charge upon their interest in the land. The amount of such payments is not disclosed, and an account thereof must be taken.
The plaintiffs are entitled to an-undivided three-tenths of all the land, except those parts embraced within the decree of confirmation ; and the defendant to the remainder. The court erred in dismissing the complaint; and the judgment will be reversed, and the cause remanded with directions to-enter a decree for partition, and for further proceedings in¡ accordance with this opinion.