(dissenting)'.
Two separate suits in chancery were instituted in the circuit court of McDowell county by W. P. Cecil ct al. and J. R. Hall et al., respectively, against E. W. Clark et a?., trustees, relating to the same tract of land as the subject matter of controversy. In the first suit the plaintiffs filed their bill, supplemental and amended and supplemental bills, and bill of revivor, to all which bills defendants demurred, and filed their answers denying relief, to which plaintiffs replied generally. Depositions were taken by *691the parties, and on a final hearing- the circuit court granted the relief prayed, and defendants appeal.
The faets in the case are as follows: The commonwealth of Virginia granted to George Pickett a tract of four thousand acres of land in 1795. Afterwards, by patent bearing date July 1, 1851, the commonwealth of Virginia granted t > Henley Chapman and David Hall “a certain tract or parcel of land containing 1,750 acres, lying in the counties of Mercer and Tazewell, the greater part being in Mercer county,” being a portion of the land covered by the first patent. By deed dated April 5, 1856, said Chapman and Hall conveyed to D. R. Perdue a portion of the tract lying in Mercer county, estimated to contain nine hundred and twenty-five acres, leaving vested in said grantors eight hundred and twenty-five acres, afterwards thought to be eight hundred and fifty acres, and in reality exceeding one thousand acres, nearly all of which was found, after the formation of McDowell county in 1858, to lie therein. Henley Chapman died in 1864, and his moiety of said land by reason of intestacy decended to his five children, Manilius Chapman, A. A. Chapman, Araminta D. French, Elvina Pendleton, and Isabella Cecil. The land was assessed on the land books of Mercer county from 1857 to 1866, inclusive, in the names of Chapman and Hall. In 1867 it was assessed on said books to Henley, Chapman, and Mary E. Hall. In 1868 it was dropped from the assessors’ books, and was not restored thereto until 1875, when David E. Johnson, the defendant, had it replaced thereon in the name of Mary E. Hall and others. And it was continued in the name of Mary E. Hall until the year 1880 (except for the year 1878) when it was assessed, three-fourths, being 637.80, to Mary E. Hall, and one-fourth, 212.20 acres, to David E. Johnson. For the year 1881 it was so charged. In the year 1878 it was omitted from the land books, was sold as delinquent and bought in by the State, but was redeemed by Johnson the 11th of March, 1882, in the name of D. Hall’s heirs and Manilius Chapman. In 1882, Johnson had said land dropped from the land books of Mercer county, and charged on the land books of McDowell county in the name of Hall and Chapman as to three-fourths and said Johnson as to the one-*692fourth. The three-fourths was returned delinquent for the non-payment of taxes, and in December 1883, it was sold for taxes, and purchased by Johnson. After that year the lands were assessed to, and the taxes thereon paid by, the present owners and their grantors. At May term, 1885, in a proceeding- instituted for the sale of school lands by the school commissioner, this land was treated as forfeited in the county of McDowell, and redeemed by the Flat Top Coal Company as the true owner thereof. On the 2d day of August, 1882, Manilius Chapman, claiming- to own the whole of the Chapman moiety in his own rig-ht, in compliance with a contract made the 28th of December, 1881, executed a special warranty deed conveying such moiety to said Johnson. The land up until this time had never been in the actual possession of any one. And the Chapman heirs, apparently having abandoned the same, had not been charged with or paid the taxes thereon since 1868, even including Manilius. Nor have the plaintiffs or those under whom they claim ever had possession of, or been assessed with or paid taxes thereon, from the date of Henley Chapman’s death, in 1864, even down until this suit was instituted; although Mrs. Cecil was so situated up until the hour of her death, under the Constitution and laws of this State, that she could have redeemed her interest in said land from forfeiture, unless she had abandoned the same to her brother Manilius. She being a married woman, her right expired with her. Const. Art. XIII, s. 6; Acts 1872-3, c. 117, s. 39; Code, c. 31, s. 39. And she and the other plaintiffs might have redeemed the same at any time under the provisions of chapter 96, Acts 1872-73. But they made no effort to do so during the lifetime of Manilius Chapman nor since his death. After the conveyance of Manilius Chapman to David E. Johnson, the Chapman moiety was passed along by various conveyances until it finally lodged in Edward W. .Clark, Sidney F. Tyler, and Henderson M. Bell, trustees of the Flat Top Land Trust, who now claim the same as purchasers for value without notice, and are in the actual possession and control thereof, and have been since at least two years prior to the institution of this suit. Plaintiffs insist on four grounds of equity jurisdiction to maintain their bills: (1) *693The right to be relieved from forfeiture for non-payment of taxes; (2) the alleged fraudulent conduct of the various defendants in relation to the Chapman moiety of land; (3) the right to have defendant’s deeds canceled as clouds on the title; (4) the right of partition.
As to the first, it is.only necessary to say that a court of chancery has no general jurisdiction over forfeited lands, but only such limited jurisdiction as is conferred on it by chapter 105. of the Code. It therefore has no authority to direct a school commissioner, or any one else, to institute proceedings for the sale of lands to enable former owners thereof to redeem the same. When the title of land is once vested in the State by forfeiture, such title can only be divested in the manner provided in the Constitution and the acts of the legislature. And the right of redemption is a mere gratuitj' conferred by the State on the former owner, and can only be exercised in the manner provided by law. McClure v. Maitland, 24 W. Va. 561. Nor are there any equitable grounds of fraud alleged in the bills. The defendants had the right to enter into the combinations alleged for the purpose of buying or selling lands. They also had the right to redeem such lands as they claimed to own from forfeiture, or buy them in at tax sales, or to take any legitimate steps to perfect such titles as they may have acquired. They have been guilty of no fraud, actual or constructive, towards the plaintiffs. If their tax title and redemption proceedings are void, they in no way interfere with plaintiffs’ legal rights. If they are valid, plaintiffs are not entitled to the benefit of them, as their title, if lost, is owing to the laches of themselves and those under whom they claim. Nor are the plaintiffs in condition to ask for the cancellation of defendants’ deeds as clouds on their title.
Plaintiffs set up and rely on legal title. They are out of possession, and without legal title. The defendants are in adverse possession under a bona fide claim of title. The law is now well settled that a person claiming legal title to land, and not in possession thereof, cannot maintain a suit to cancel deeds of an adverse claimant in possession as clouds on title. Christian v. Vance, 41 W. Va. 8, (24 S. E. 596); Carberry v. Railroad Co., 44 W. Va. 260; (28 S. E. *694694); Clayton v. Barr, 34 W. Va. 290, (12 S. E. 704). Although out of possession, a person holding a good and valid title to land may sue to have avoided a tax deed which owes its existence to the supposed forfeiture or delinquency of such title, or a forged or fraudulent deed purporting to convey such title, as being parasitical g-rowths, or illegal offshoots therefrom, which, if not removed in time, may entirely destroy and supersede the true title. Code, c. 31, s. 27; DeCamp v. Carnahan, 26 W. Va. 839; Simpson v. Edmiston, 23 W. Va. 678; Hoopes v. Devaugh, 43 W. Va. 447, (27 S. E. 251). A mere unexercised right of redemption will not support such suit. The person whose title is legally forfeited must either redeem it before suit instituted, or before the suit is finally heard, and bring it to the attention of the court by an amended bill. Totten v. Nighbert, 41 W. Va. 800, (24 S. E. 627). A person out of possession cannot maintain a suit to cancel tax or other deeds foreign to his title, and which are the outgrowth of an adverse claim or title, for the reason that his title is not directly affected thereby in such manner as to prevent him from maintaining an action of ejectment against an adverse claimant in possession.
The last and main ground on which plaintiffs rely is the right of partition. The law on this subject is found in section 1, chapter 79, Code, and is as follows, to wit: “Tenants in common, joint tenants and co-parceners shall be compellable to make partition, and the circuit court of the county wherein the estate, or any part thereof, may be, shall have jurisdiction, in cases of partition, and in the exercise of such jurisdiction, may take cognizance of all questions of law affecting the legal title, that may arise in any proceedings. ” The right to have partition is confined to three classes of persons, to wit, tenants in common, joint tenants, and co-parceners, and no others. The fact that persons claim to occupy such relation towards others will not justify an ejectment suit in chancery to oust such others of their exclusive possession, and cancel their deeds as clouds on plaintiff’s title. The relationship must actually exist. Nor will an inchoate right justify such proceedings, but the right must be reduced to actual posses-^ sion. Plaintiffs’ counsel refer to the late case of Pillow *695v. Improvement Co., 23 S. E. 32, decided by the court of appeals of Virginia, as directly in point. Therein it was held: “That defendants cannot defeat complainants’ right to have their legal right settled in a suit for partition by merely denying complainants’ right to partition, and holding adversely to them, where defendants’ grantor was a co-parcener with complainants.” “Where defendants in partition claimed under one who was a co-parcener with plaintiffs, and asserted that said co-parcener subsequently held adversely to the others, the burden of proof is on the defendants to establish some notorious act of ouster or adversary possession brought home to the knowledge of the others.” These two propositions, taken together, properly propound the law. But the first, taken by itself, is entirely too broad. It is modified even by the opinion itself, in that it holds that, if the adverse possession had continued for ten years, it would be a complete bar to plaintiffs’ suit. The proposition would not have been too broad, but the court added to it in accordance with the facts when such co-parcener at the time of the sale to the defendants was in possession of such property as a co-parcener or joint owner with the plaintiffs. The facts in that case were as follows: Thomas Turner was in actual possession, under a defective title, of a one hundred and twenty acre tract of land. He died intestate, leaving a widow and children, of whom R. D. M. Turner was one, and who was living on, and at the death of his father came into possession of, the land as a co-parcener with the other heirs. After the death of his father, R. D. M. Turner, ascertaining the defect in his father’s deed, which, however, was not apparent on its face, and because the meritorious grantor was a minor, he procured for a small sum of money, which was falsely mentioned on its face as a much larger sum, a conveyance to himself. Of this he never notified his co-parceners who were entitled to the benefit thereof. Shortly afterwards hfe conveyed to Joseph L. Doran, who conveyed to the Southwest Virginia Improvement Company, which in turn conveyed to the trustees of the Flat Top Land Trust. The grantees took the same possession that their original grantor, Turner, had as a co-parcener of his father’s heirs. Such being the case, *696they took possession under the whole title, and not under their special title from R. D. M. Turner; in other words, as to possession, they were placed in precisely the same position as to the co-parceners as was their grantor, Turner. In the opinion it is said: “As between co-parceners and others claiming in privity, the entry and possession of one is always presumed to be in the maintenance of the right of all, and this presumption will prevail in favor of all until some notorious act of ouster or adversary possession is brought home to the knowledge of the others, or it is clearly shown that he has become owner by purchase.” “A clear, positive, and continued disclaimer of title, and the assertion of an adverse right brought home to the knowledge of the other co-parceners, are indispensable, although g-reat lapse of time, with other circumstances, may warrant the presumption of a disseisin or ouster by one co-parcener or other joint owner.” And it was held that it required the statutory period of ten years to bar the co-parcener’s right to partition, where the adverse claimant entered into the possession of the co-parceiry when there is no actual notice of adverse possession, except such as might constructively arise from the possessor having a deed for the whole land from the co-parcener; in other words, the co-parcener could not be deprived of his co-tenancy in the joint possession by the mere execution by the co-parcener in actual possession of a deed for the whole estate to a third person. If such was the law, any co-parcener could defeat a partition suit by making a deed and surrendering the joint possession to some third person. Hence the court establishes the rule that the mere claim of title from a co-parcener who held the joint possession with an entry on the land under such possession will not destroy the tenancy in common, and therefore the right of partition, by merely denying the same and assuming to hold adversely until the co-tenant out of actual possession has by his laches lost his right to bring suit by reason of the statutory bar. This amounts to perfect disseisin. The case under consideration presents a very different state of facts. At the time the deed of Manilius Chapman was made to the defendant Johnson, he or no other person had ever had actual possession of the land. *697For over ten years it had been, for some reason not appearing-, abandoned by all the heirs of Henley Chapman,, even including- Manilius Chapman. It must be presumed’ that this was because the land was wild, remote, and sterile, and not worth the payment of taxes thereon. David E. Johnson, in attempting to save the same from forfeiture for Mrs. Hall, learns of the original patent to Hall and Chapman, and also that, while the land was-off the land books a sufficient time to cause its forfeiture, yet there was no deed of record conveying the Chapman moiety to any one. He therefore sees Manilius Chapman abo it, who claims that he is the true owner thereof, and sells the same, and makes a special warranty deed therefor to Johnson. Johnson in turn, along with his other speculations, which appear to be perfectly fair and legitimate, sells the same with covenants of general waranty to-others-, and finally, after passing through several conveyances, it. becomes the property of the Flat Top Land- Trust, an association composed of influential and energetic speculators. Finally a railroad is Constructed, probably, through-the- influence of these speculators, to -this land. They take actual possession thereof, lease the same, open the coal veins, and begin to market the coal. The land-now becomes of great value. The plaintiffs, and those under whom they claim, who, if they have any rights, have been sleeping- on them for upward of twenty years, ever since-the land was dropped from the land books, and, years after the death of Manilius Chapman, rush' in.and complain, saying: “It is true that we never before have laid claim to this land. We have never had the same placed:on.the assessors’ books, nor paid any taxes thereon, and-you-have never heard of us before, but still we are your long-lost and silent co-tenants, and demand a share in our common property, which has become so enhanced -in value during our Rip Van Winkle sleep as to make ita-matter worth contending about.” Uncle Manilius, who claimed-the land as his own, and sold and conveyed the same- as such, is dead, as are also his brothers and sisters, his coheirs, none of whom ever cared sufficient. for the land to-pay the taxes due thereon, but permitted .the- same to-be' and remain forfeited during their lives. Are; the plaintiffs *698co-tenants with the defendants? To be such they must have unity' of possession actual or constructive. They had constructive possession unless their title was forfeited to the State up until the present claimants took actual adverse possession thereof under their title from Manilius Chapman: Their entry was not had subservient to the possession of Manilius Chapman, for he never had other than constructive possession apparently long- abandoned. The law is well settled that “a conveyance by one co-tenant of the entire estate gives color of title, and, if possession is taken under it, the grantee claiming title to the whole, it amounts to an ouster of the co-tenants, and the possession of the g-rantee is adverse therein.” 1 Am. & Eng. Ene. Eaw (2d Ed.) 806; Freem. Co-Ten. § 447. This rule is subject to the qualification that, if the conveyance by the tenants is such as to amount to a positive breach of trust and confidence, the co-tenancy having a living, animated existence, such conveyance and the entry thereunder will be held to be in fraud of the co-tenants, and will not amount to a complete disseisin so as to bar their right of partition" until the statutory period of ten years has elapsed from the date of the entry; and this for the reason that the deed of the trusted co-tenant is but a fraudulent offshoot from the main title, and forms such a cloud upon it that a courfiof equity will interfere, and remove it, at the instance of the defrauded co-tenanfs out of possession, to prevent it ripening into perfect title, to the utter extinction of that from which it at first was but a mere illegal outgrowth. Such rule does not prevail where the co-tenancy is dead and buried beyond resurrection, except by mutual consent of all the co-tenants. Such resurrection would be in the nature of a new life, rather than the regeneration of the old, and would be adverse to any rights secured by third parties during the inanimate period of the co-tenancy. The doctrine of co-tenancy is one of mutual trust and confidence and reciprocal duty. The rule ceases where its reason ceases. A co-tenant not in-possession of, and deriving no benefits from, and having no common funds, is not bound to pay the taxes on the common property to prevent its forfeiture, nor to redeem it after it is forfeited. If he does so, it will inure to the *699benefit of all if they insist on tbeir rig-fits in a reasonable time; otherwise equity will refuse them its aid. Freem. Co-Ten. § 156. “Tenants in common are not necessarily prohibited from asserting an adverse title. If their interests accrue at different times, and under different instruments, and neither has superior means of information respecting the state of the title, then either, unless he em-ploys his co-tenancy to secure an advantage, may acquire and assert a superior outstanding title, especially where the co-tenants are not in joint possession of the premises.” Id. § 155. Not only this, but a tenant in common, not under duty to redeem the whole, has the right, with the consent of the state or a purchaser holding the legal title, to redeem his own interest, and allow the residue to remain forfeited. He may also redeem the whole, but he cannot compel his co-tenants to contribute, for they have the right to abandon their interests; and unless within a reasonable time after the redemption, and before the intervention of the rights of innocent third persons, they offer to contribute, equity will deny them its assistance, and refuse to interfere in their behalf. Watkins v. Eaton, 30 Me. 534. In the present case neither the grantor, Manilius Chapman, nor any of his alleged co-tenants, ever had actual possession, and the grantees taking possession under the deed cannot be possibly held to have entered into possession as the co-tenant of the plaintiffs, nor into their possession, for that they did not have.
Nor is this deed in fraud of plaintiffs’ rights, for it is nothing more than a special warranty or quitclaim deed to a tract of wild land long since abandoned by all the Chapman co-tenants, either because it was not considered worth the taxes, or because of some recognized right in Manilius Chapman. He was under no obligation, so far as the record shows, to pay the taxes on or redeem the land for the benefit of the plaintiffs, nor did he ever do so, but pui--posely allowed the same to be dropped from the land books and forfeited, because of its valueless condition. It was off the land books for the years 1868, 1869, 1870, 1871, 1872, 1873, and 1874, and was thereby forfeited to the State, whether we treat it, as it appears to have been, as a tract of one thousand acres or less; for, if over, it was *700forfeited by the Constitution of 1872, and if less, by section 8, chapter 29, Code 1868. This tract is shown to have actually contained upward of one thousand acres, and therefore was forfeited as being- within the provisions of the Constitution. If it had been on the books as eig-ht hundred and fifty acres, it could not have been thus forfeited, or if.it had been redeemed as a tract of eig-ht hundred and fifty acres this would have satisfied the forfeiture. But, as it was neither on the books nor redeemed, it must be placed in the class to which it actually belongs, to wit, those containing one thousand acres or more; for while it was off the books the owners had no supposition on the subject, and after-suppositions will not relieve from a forfeiture already accrued. But,' if such were not the truth, sec. 6, Art. XIII, does not repeal such provision of the law then in existence, which dealt with tracts of land of less than one thousand acres, as there was no provision in such section relating to such lands. The section simply undertook to confirm the law in existence relating to tracts of land containing one thousand acres or more, and place it beyond the power of the legislature to relieve such tracts from forfeiture, and is to this extent a ratification, and a more authoritative declaration of the law, and not a repeal thereof. The fact that tracts of less quantity are not mentioned precludes the idea that the Constitution was intended to deal with them at all, or take from the legislature the power to do so. The State Constitution is a limitation upon, and not a grant of powers to, the legislature, and all legislative powers not withheld from are vested in it. In case of a doubt it must always be resolved in favor of legislative power. Cooley, Const. Lim. 216. It is a matter of impossibility to imply from the constitutional forfeiture of tracts of land of over one thousand acres a prohibition against the forfeiture of a tract containing a less quantity. One was deemed of sufficient importance for constitutional inhibition, while the other, of less importance, was left entirely to legislative discretion. Forfeiture for nonentry on land books and nonpayment of taxes has been denounced as a “drastric, severe, and terrible remedy.” But wherefore? There can be no question but the human race holds the surface of the earth in co-*701tenancy by Divine appointment. The selfish cupidity and greed of the predominate classes of mankind through ages past, even back to feudal times, ignoring the reciprocal duties and obligations of his great co-tenancy, has built up our present system of land tenures, the theory of which is that all the land belonged originally to the people, and they, through their representing nonentity called the state, have granted it from time to time to the holders thereof. A necessary implied condition attached to all such grants is that the grantees shall contribute their fair proportion to the support of the g-overnment for the common weal, otherwise the property should revert to the people to be again granted to some one more faithful to his public obligations. There is nothing “drastic, severe, or terrible” about such forfeiture. • It is simply the people regaining their own by reason of their original co-tenancy rights through failure of their donee to comply with the terms of their donation. To the donee the gratuitous right of redemption is still extended until the title has irrevocably vested in another. Such forfeiture is not only in accord with the fundamental principles of natural justice and the Constitution and laws of the State, but is in no way repugnant to, or in violation of, the constitution of the United States, and especially section 1, Art. XIV, thereof. 25 Am. & Eng. Enc. Law. 405. The Hall and Chapman title was absolutely forfeited do and vested in the State by the year 1874, at the furthest.
The legislature, recognizing the foregoing to be the true construction of the Constitution and tax laws, on the 3d day of April, 1873, passed an enabling act, permitting all owners whose lands were then or should be thereafter forfeited to the State, or any person having a lien or claim thereon, either legal or equitable, “to redeem the said lands at any time before the sale thereof by paying to the auditor the taxes due the state and interest thereon, and by paying the sheriff of the county in which said lands may lie or have been assessed with taxes, all county, township, district and school taxes due and unpaid thereon;” subject to the usual exceptions in favor of other claimants. Acts 1872-73, c. 96. Afterwards, on the 9th day April, 1873, the legislature amended and reenacted chapter 31 of *702the Code of 1868 by chapter 117, Acts 1872-73. So far as tracts of land of less than one thousand acres were concerned, their forfeiture depended on their being omitted from the land books five years after the passag-e of the act; as to those of one thousand acres or more, the inhibition of the Constitution was recognized and followed. It is not necessary to notice the forfeiture in McDowell county, where the land is now said to lie, as the forfeiture was complete in Mercer county. The placing the land on the land books by David E. Johnson and the assessor in the name of Mary E. Hall, and continuing the same down to the date of the Manilius Chapman deed, did not relieve the same from the forfeiture; for neither the illegal acts of the original owner nor its officers can divest the State of its title to its lands. Totten v. Nighbert, 41 W. Va. 800, (24 S. E. 627); Yokum v. Fickey, 37 W. Va. 762, (17 S. E. 318). Nor would the placing- of the land on the books, if legal, in the name of Mary E. Hall, inure to the benefit of the Chapman mo;ety, for the reason that she placed the same thereon under claim to the whole thereof, and her act would be considered either as applying to her interest alone, or rather an act of ouster than otherwise, and, if continued long enough, in conjunction with other acts of ownership, would amount to a complete bar of title, for it was their duty, as the owners thereof, to have the land placed on the books in their own names The alleged forfeiture in 1878 and purchase by the State did not add to or affect in any manner the title already in the State. The title being thus vested in the State, and having been off the land books for upwards of twelve years, so far as the Chapman moiety was concerned, when Manilius Chapman deeded the whole thereof by special warranty he only abandoned the mere right of redemption, adversely however, to plaintiffs. So far as the co-tenancy was concerned at this time, it was lifeless. It imposed no obligation on Manilius Chapman to redeem the land, and he committed no breach of trust in executing his special warranty deed, for, while it purported to convey the whole, it could only convey such interest as remained in him. Nevertheless, with this deed at this point, unless the whole thereof properly vested in Manilius, the Chapman title branched into two adverse *703parts. Defendants, claiming- the whole under such deed, owed no duties or obligations as co-tenants with plaintiffs; and all their acts and proceedings thereafter in attempting to secure a good title were adverse to plaintiffs’ title, and cannot inure to their benefit. It is true that, if plaintiffs had, as they might have done, redeemed the land, and restored their rights therein, as they had no claim to the interest of Manilius Chapman, they might have created a co-tenancy between themselves and the present owmers of the land. But this they did not undertake to do, but, having remained quiescent until they believe that the defendants, by their superior diligence, have redeemed the title from the State, they ask that they may be participants therein. Though equity will not deprive them of their legal right of redemption, if it still exists, it will not take from the defendants adverse rights acquired by their diligence.
While the order of redemption made on the 11th day of March, 1882, purports to redeem the whole title, and is an apparent satisfaction to the State of all its taxes, but falsely so, yet it will be limited to the redemption only of such title as was vested in the defendants, or rather that they had the legal adverse right to redeem, and will not be held to extend to the adverse claim of plaintiffs. Such redemption, if valid, operates to release all former taxes and forfeitures, but only in behalf of the title making the redemption, and not in behalf of an outstanding superior adverse title not represented in the proceedings. Married women and infants are not bound by such redemption, nor are they entitled to be made partakers thereof unless they are privy to the title making the redemption. To a superior adverse claimant of the Henley Chapman title, who has fully redeemed the same in accordance with chapter 96, Acts 1872-73, such latter redemption would be but a mere cloud, subject to equitable removal, but could not inure to the benefit of such superior title forfeited and unredeemed, unless made in its interest, and not adversely. For instance, Mrs. Cecil, being a married woman, if her rights were not abandoned to Manilius Chapman, both by Constitution and statute would have had the right, up until the date of her death, to have redeemed the Henley *704Chapman title; and the order of the 11th of March, 1882, would neither have barred her rights, nor inured to her benefit, although, after she had exercised the right of redemption, she would have the right to attack such pretended order of redemption as a cloud upon her title. In the case of Simpson v. Edmiston, 23 W. Va. 675, it is held that: “Where two or more persons claim the same land under adverse titles or color of titles, if either desires to protect his title from forfeiture he must enter the land on the assessors’ book in his name, and pay the taxes thereon. The payment of taxes on such land by an adverse claimant will not protect other titles from forfeiture. Each claimant must enter the land and pay the taxes on it in his own name.” The same rule applies to redemp-tions — that each adverse claimant must make redemption of his particular title in his own name, — as the redemption by one adverse claimant will not inure to the benefit of another. In this case, by reason of the dereliction of its officers, the State never has receiyed its taxes for the years 1868, 1869, 1870, 1871, 1872, 1873, and 1874, and if the plaintiffs had1 at any time asked to redeem the lands they would have had to pay these taxes. The defendants redeemed the land only for the forfeiture of 1878, which as heretofore shown, was not a forfeiture at all. The State, by permitting such falses redemption to take place, may have bound itself as to any further claim of back taxes as against the defendants, but not as against the plaintiffs. The same reason applies to the reseiwation in the order of the 4th of October, 1882, made by the county court of Mc-Dowell county. The reservation was not in behalf of the general title claimed by plaintiffs, but the special adverse title of the defendants under Manilius Chapman. The tax deed resulted from the mere forfeiture of this special adverse title, and under it Johnson took nothing, but simply redeemed such title, as no entry on the land books, it matters not in whose name, could relieve the original forfeiture which already vested the title in the State, but nothing but a redemption in the manner provided by law could effect such result. Totten v. Nighiert, above cited.
With regard to the proceedings of the May term, 1885, *705the same reasoning- fully applies, and with the same force, as is heretofore applied to the redemption order of March, 1882. Such order could not affect a superior, adverse, outstanding- title redeemed, but not represented. In all these proceedings on the part of the defendants there has never been a single act that recognized the existence of a co-tenancy between themselves and the plaintiffs; on the contrary, every act on their part was adverse to the plaintiff’s pretensions, and under and by virtue of their deed from Manilius Chapman. The Henlejr Chapman title nevérhas been redeeemed from its original forfeiture, but it still vests in the State, except in so far as the State may have parted with it to or barred itself as against the defendants. The plaintiffs, for upward of twenty years, though having equal opportunities with the defendants, have never tried to redeem it, but, instead of doing so, and thus acquiring their legal rights without any other than a mere disputed equity of redemption, endeavor in this suit to fasten on the defendants the reciprocal obligations of co-tenants. The purchasers from Manilius Chapman were under neither a legal nor moral obligation to pay the back taxes, or redeem the land for the benefit of the plaintiffs. Neither was there any such obligation on Manilius Chapman, for he had the same right to abandon the land to the State that the plaintiffs had, and in making his deed he did not interfere with their rights, or commit a breach of trust as to them, as it amounted to nothing more than a quitclaim deed, giving mere color of title to a tract of land long abandoned. Plaintiffs were bound to take notice of its adverse character, and to take steps in time to protect their interest and secure their inchoate legal rights.
In this suit plaintiffs occupy the contradictory position of asking that defendants’ deeds, decrees, etc., be held void as clouds' on their title, and yet to be held valid, so as to reinvest in them their forfeited title. Being void for one purpose, they are void for all. And, if valid against the State, they are valid against the plaintiffs, as they recognize and confirm defendants’ adverse holding. A partial or ineffective redemption by a stranger, though under color of title, is void, and does not inure to the benefit of the title sought to be redeemed; and a partial and inef*706fective redemption by persons who claim adversely to the legal title is void, and cannot inure to the benefit of such holder whose title is forfeited; and although such partial redemptions are void, yet the persons making them, not being those for whose default the title was forfeited, nor their heirs or devisees, may acquire title under sec. 3 of Art. XIII of the Constitution. But this section inhibits those, their heirs and devisees, for whose laches the title was forfeited, from acquirng title or regaining the forfeited title except by full payment to the State of all the taxes for which the land was forfeited, or chargeable with during the time the forfeiture continued; and an enactment of the legislature that would permit the redemption of the title in any other way, or permit the acquirement of the state’s title by the inhibited persons in any other manner short of the full payment of the taxes according to chapter 96, Acts 1872-73, would be unconstitutional and void. This doctrine does not conflict with the case of Hall v. Swann, 39 W. Va. 353, (19 S. E. 509). The only interest remaining in plaintiffs, as heretofore shown, at the time of the filing of their several bills, is a disputed, doubtful, and unexercised right of redemption accorded as a mere gratuity by the laws of the State. This is insufficient to support a suit for partition, or to remove a cloud from a forfeited title, and, equity having no general jurisdiction to permit redemption of titles forfeited to the State for non-entry on the land books, the bills ought to be dismissed as prematurely filed at the costs of the plaintiffs, they having shown no right to maintain the same. To sustain the plaintiffs’ mere pretentions under the facts and circumstances of this case is to carry the doctrine of co-tenancy to an unjustifiable, unreasonable, and unconscionable extent, rewarding laches at the expense of diligence, disregarding and subverting the true principles of equitable relief, and causing a miscarriage of justice. Hence my dissent.
Modified.