delivered the opinion of the Court:
After the foregoing statement little need be said by way of opinion in this ease. The cross-bill was improperly filed. Appellee, by requiring appellant to file a proper bill, and specifically answering the same, could have obtained all the relief he seeks by the cross-bill. There seems, however, to have been no objection to it. By answering, appellant treated the cross-bill as a proper pleading in the case, and the court below makes it the basis of its decree.
There is a material variance between the allegations of this cross-bill and the decree. The cross-bill alleges that appellee and Thomas H. Scoville are tenants in common, and shows that appellant has no interest whatever in common with him. The decree drops Scoville out of the case, ignores the allegation as to his interest, and, contrary to the averments of the cross-bill, finds that appellant and appellee are tenants in common. Not only so, but the cross-bill avers that appellee is the owner of an undivided one-third interest in the northeast quarter, and Scoville of the other two-thirds, and this part of the bill is wholly disregarded in the decree. If it appeared, on the trial, that appellant, and not Scoville, was tenant in common with appellee, as the decree finds, then the cross-bill should have been dismissed, unless appellee chose to amend it so as to make it correspond with the proofs.
The decree is unsupported by the cross-bill, and for that reason must be reversed. Had the decree been based on the original and amended bills, it would have been equally erroneous. By the original bill, appellant claims title to the whole of the 160 acres, except the undivided 13j- acres in appellee. By the same, as amended, he only claims a two-thirds interest in the north-east quarter and north-west quarter, and one-third interest in the south-west quarter, and wholly fails to set out the title as to the remaining interests.
A bill for partition must set forth the interests of all parties interested in the premises. The court must ascertain and declare the rights, title and interests of all parties to the suit. These are plain requirements of the statute, and must be conformed to. As has been said by this court, when it is considered that titles to valuable lands can be divested by this .statutory proceeding, it is essential that the statute should be observed, and it has often been held, that a decree in partition which fails to find the respective interests of the several tenants in common, is erroneous.
As we are compelled to reverse this decree and remand the cause, that the issue between the parties may be presented by proper pleadings, we shall express no opinion at this time as fo the merits of the respective claims of the parties to the north-west quarter of the south-east quarter of section 13.
The decree of the court below will be reversed, and the ■cause remanded, with leave to the respective parties to amend them pleadings and introduce further proofs, if they shall so desire.
Decree reversed.