In 1951 Willie Johnson and the appellee Ernest Ford voluntarily partitioned a 38-acre tract by an exchange of warranty deeds. Two years later the appellant, C. G. Johnson, purchased from Willie the part that had been set aside to him. In 1959 the appellant brought this suit for a reformation of the partition deeds, asserting that the parties had intended to divide only the surface interest but that by mistake the minerals had also been conveyed. The chancellor dismissed the complaint for want of equity, holding that the proof of mutual mistake was not sufficiently clear and convincing and that the plaintiff was barred by laches. Although the appellant insists that the chancellor erred in denying reformation we do not reach that issue, for in our opinion the deeds actually conveyed only the surface interest and had no effect upon the mineral ownership.
The 38-acre tract was formerly owned by A. H. Hadley, whose title passed at his death to his three children. One of the Hadley heirs conveyed his undivided one-third interest to Willie Johnson in fee simple. The other two Hadley heirs conveyed their undivided two-thirds interest to Ernest Ford, but in that deed the grantors reserved a five-twelfths interest in the minerals.
There is no real conflict in the testimony of Willie Johnson and Ernest Ford with respect to the facts leading to their division of the property. Willie had built a house upon the land and wanted his one third set apart to him. To that end the two men exchanged warranty deeds on June 30, 1951, with Ford purportedly conveying the north one third of the tract to Johnson and with Johnson purportedly conveying the south two thirds to Ford. Both men agree that no money or other collateral consideration was paid by either party.
In bringing suit to reform the deeds the appellant was under the impression that the voluntary partition had fairly divided the surface interest, because it was owned outright by the contracting parties. It was thought, however, that Willie Johnson had been treated unfairly in the exchange of minerals, since the title that he received from Ford was subject to the outstanding-mineral reservation in favor of Ford’s grantors. The appellant, anticipating a favorable decree in this case, has obtained from Willie Johnson a conveyance of Willie’s mineral ownership in the entire 38 acres.
The appellant’s construction of the 1951 conveyances overlooks a principle which, as we said in Hutchison v. Sheppard, 225 Ark. 14, 279 S. W. 2d 33, applies uniquely to partition deeds. This rule is that “a partition deed conveys or creates no title, but merely severs the unity of possession.” Tiffany, Real Property (3d Ed.), § 470. It has been correctly declared with reference to such a deed that “neither party lost anything by the deed except the right to hold the property in common, and neither gained anything except to hold the interest claimed by him in severalty.” Townsend v. Outten, 95 Va. 536, 28 S. E. 958. Another clear statement of the principle may be found in Edwards v. Bates, 79 Ind. App. 578, 139 N. E. 192: “It is well settled that a mere partition of land among cotenants by the exchange of partition deeds, without any consideration other than the mutual agreement to divide their interests, does not vest in the grantee of such deeds any additional title or estate in the land partitioned. . . . The fact that the deeds exchanged by cotenants in effectuating an agreed partition are deeds of general warranty does not change the rule.”
Other cases applying the principle to partitions involving warranty deeds include Lang v. Coil, 104 Neb. 15, 175 N. W. 657; Elledge v. Welch, 238 N. C. 61, 76 S. E. 2d 340; and Chace v. Gregg, 88 Tex. 552, 32 S. W. 520. In this case we are not called upon to decide to what extent a bona fide purchaser might be bound by the rule in question if a warranty deed in his chain of title should contain no indication that it was executed as part of a partition agreement. Here no one claiming to hold under Ernest Ford has met the burden of proving himself to be an innocent purchaser; so that issue does not arise.
This case is controlled by our decision in Hutchison v. Sheppard, supra. There we held that where the parties to a partition deed owned two estates in the land, one in common and in the same ratio as the division and the other not in common and therefore not in that ratio, the deed should be construed as a conveyance only of the estate held in common. And that conclusion was reached even though the deed purported to convey, all the grantor’s “right, title, interest and claim” in and to the land. The governing rule is obviously both sensible and just, for it prevents either party from gaining an advantage at the other’s expense. It follows that the Johnson-Ford partition deeds must be construed as having conveyed only the surface interest, since that was the only estate which the parties owned in common in the same proportion that they sought to achieve by partition.
A decree of reformation is unnecessary, but the case does present a genuine controversy that can appropriately be ended once and for all by the entry of a declaratory judgment. A complaint for some other form of relief may, in the interest of justice, be treated as one for a declaratory judgment. Culp v. Scurlock, 225 Ark. 749, 284 S. W. 2d 851. That course will be followed here, and since the title to land is involved the cause will be remanded so that a declaratory decree favorable to the appellant may be placed of record.
Reversed.
McFaddin, J., dissents.