The opinion of the court was delivered by
Barrett, J.We present no discussion or statement of the evidence. The facts alluded to or stated as found, with a brief statement by the reporter, to be educed from the bill and answer, of the grounds of claim and defence, will make sufficiently intelligible the views of the court as expressed in what follows.
The orator, Piper, could, not, in the petition for partition in the county court, avail himself of the claim he asserts in respect to the house in question. In that proceeding, the rights of the parties are to be governed by their respective legal title as tenants in common. Under the deed of the defendant to Piper, they were tenants in common of the entire twenty acres, with the house on it; so that, in view of that deed, the defendant was equal owner with Piper of the house as well as of the land. No form of issue under that petition, could have resulted in changing the operation of that deed into one of the south half of the lot in severalty. Nor could the relation evinced by that deed, be changed as the result of such proceeding, short of impeaching the deed for fraud, and thus leaving Piper without any legal title in the land, and only an equitable title and right in either house or land. This answers the point that Piper ought to have asserted his several and exclusive right to the house by plea to the petition, and that not having so done, he is precluded by his neglect in that respect, from going into a court of equity.
The only remaining ground of objection to his resorting to such court that could be asserted, is, that by his consenting to' the ap*728pointment of commissioners under that petition, he is to be regarded as having yielded to defendant’s claim of being tenant in common of both land and house. But this cannot be maintained. There was no judgment in that case. So Piper is not precluded and concluded on that score. Whether he waived his right, and yielded to the claim of the defendant, depend on the view and intent with which he took the course he did in that respect. It is plain that he did not intend to yield to such claim, but, on the contrary, supposed his right to the house and south half of the land, would be available to himself to every legal and equitable intent before, and by the action of, the commissioners in making the partition. Such “ ignorantia legis ” does not operate by estoppel, to divest him of his right in legal, as well as moral, equity, as against the defendant, in respect to either the house or the land. If, then, the defendant, in the proceeding for partition, was insisting on appropriating to himself half of that house by virtue of his apparent legal right betokened by the face of the deed, in violation of the equitable rights and duties between the parties, springing from the real transaction, it was proper for Piper to invoke the protection and remedy which it is the province of a court of equity to accord.
It only remains to inquire whether, on the facts proved, the defendant is entitled to have one half, or any part, of the house in question. It is shown that he has not paid, nor agreed to pay, anything for it; that he has been paid by Piper for one half of the land ; that he permitted Piper to put the house upon the land before deeding, with the full understanding that Piper was to have title in severalty to the land on which it was placed. We find, also, that he agreed, in consideration of the money paid him by Piper, and so it was his duty, to give Piper a deed of the south half of the land in severalty, and that Piper accepted the deed that was made, still asserting his right, and yielding in that respect in reliance upon the assurance of the defendant that the result would be the same under that deed as under one conveying the south half in severalty. We fail to find that Piper undertook, or came under any obligation, to purcha'se, or to find a purchaser for, more than the south half of the twenty-acre lot; or that the *729failure of his brother, or of Mr. Rash, to purchase the other half affected the duty of the defendant to convey to Piper the south half of the land. In view of these results from the evidence, the bringing of that petition was without ground or justifiable occasion ; and, in the proceedings under it, the assertion of right by defendant to have the value of one half of Piper’s house reckoned in his favor in the making of the partition by the Commissioners, was a wrong that could not be effectually resisted, and Piper’s rights secured and enforced, without resort to the court of equity.
The result illustrates how easy, as well as how politic and profitable it would have been for the defendant to have avoided occasion for litigation, by giving Piper such a deed as he was entitled to, or, even in his needless proceeding for partition, by letting the commissioners make the partition conformably to what they should have found to be the just rights of the parties, from evidence showing all the facts constituting the real transaction between them.
The decree is affirmed.