(dissenting). I cannot concur in the opinions of my brethren in this case. In my judgment, the logical conclusion of the former decision is that complainants are without remedy as against these defendants. The bill was not then framed to test the'question now involved, and we therefore refrained from expressing any opinion upon it. The like course was pursued in Adam v. Iron Co., 7 Cush. 361. In that case one Lane, the owner of the fee-simple of three undivided fourths of the lot in question, in December, 1790, sold and conveyed the same to three grantees, reserving to himself all the iron and other ores in and upon the land, with the right of way to pass and repass, and to dig for and cart away the same from the land. He occupied the premises and took ore therefrom till the year 1800. He then sold his reserved and excepted rights to one Forbes, who used the orebed during his lifetime. The complainants were the heirs of Forbes. The grantees in the deed from Lane, of December 21, 1790, conveyed *274to the defendant company, which took possession of the land, and dug and carried away the ore, driving the complainants therefrom. The bill prayed for an accounting, injunction, and general relief. A demurrer to the bill was interposed, which was sustained. It was urged upon the argument that the bill showed a tenancy in common of the mine, and therefore the court had jurisdiction. The. court held that no such case was set out in the bill, and declined to take jurisdiction on that ground. The bill was afterwards amended, averring that the complainants were tenants in common of three quarter parts of the ore and orebeds, and that 'the defendant was tenant in common of one quarter part. The learned Chief Justice Shaw delivered the opinion of the court. It was there said:
“It is entirely settled, as a rule of law in relation to land, that the conveyance of any separate estate by a tenant in common, by metes and bounds, is void as against the cotenants, and is available only by way of estoppel against the grantor and his heirs. * * * I have a moiety. My cotenant has a moiety. He may convey a quarter of the whole estate to one, an eighth to another, a sixteenth to another, and so on indefinitely, letting in other cotenants with me; but, all being seised of aliquot parts in the same estate, and of like kind and quality, my right to partition is not disturbed by the number of cotenants; but, if he could convey his aliquot part in specified parcels of the estate, he might diminish the value of my right, if not render it worthless.”
The opinion then states the mischief and inconvenience arising from the act of one cotenant in attempting to convey his undivided part in particular parcels, instead of an aliquot part in the whole common estate, and states that for the same reasons an attempt to “parcel out rights, in their nature indivisible, in definite portions of the inheritance, as the mines to one, and the general estate to another,” is void against cotenants. The conclusion reached was that the reservation in the deed from Lane was void, and *275the subsequent deed to Forbes was also void, and that no interest in the estate or orebeds passed by it.
For the like reason, a conveyance by a cotenant of his interest in the timber, ore, minerals, clay beds, and the like, would be void.
To the same effect is Franklinite Co. v. Condit, 19 N. J. Eq. 394, which was cited in the former case, and where it was held that a grantee of the right to dig ores, from one tenant in common, Oannot call for a partition of the premises.
These -are the only .cases I have been able to find, and we are cited to no others, which involve the sale by one tenant in common of an interest in the common estate which in its nature is indivisible.
The- cases of Lessee of White v. Sayre, 2 Ohio, 112; Stark v. Barrett, 15 Cal. 370; Harlan v. Langham, 69 Penn. St. 238; Whitton v. Whitton, 38 N. H. 133; and Barnhart v. Campbell, 50 Mo. 599, — are cited as analogous in principle to the present case, and therefore sustaining the claim of the complainants. None of these eases involve the conveyance by a tenant in common of any interest in the timber, or ores, or minerals, or other interest in the land. They involve only the effect óf a conveyance of an undivided interest of a part of the common estate, or a conveyance in severalty, by metes and bounds, of a part thereof. All these authorities hold that such conveyances do not affect the rights of the other cotenants. None of them, except Lessee of White v. Sayre, hold that the grantees of such parties can maintain partition against their grantors' cotenants. The extent of the holding is that when partition is had of the entirety, and a specific part is partitioned to their grantors, they are then estopped by their deeds from denying the rights of their grantees. The purchaser of a specific parcel may get nothing, for none of the land conveyed to him may be set apart to his grantor. In such *276case he is without remedy, unless it be an action at law to-recover the purchase price for failure of consideration under the covenants in his deed. With these decisions I find no fault. They may safely be granted to rest upon sound principle, and still they do not, in my judgment, affect the question now under consideration, where an aliquot part of the common estate is-not conveyed. The same will, in my judgment, be found true of the other* cases cited by my brethren.
It is also held, with good reason, that where the cotenants, have assented, by deed or in some other proper manner, to the act of the cotenant, they thereby ratify the act. But mere absence of objection is not sufficient. Ore Co. v. Miller, 41 Conn. 132; Goodwin v. Keney, 49 Id. 563. In the former case, decided in 1874, the court say:
£<Tn New Hampshire, as in Massachusetts, the doctrine that such conveyances may be made valid and effectual by the act of the cotenants is well established. Great Falls Co. v. Worster, 15 N. H. 412; Whitton v. Whitton, 38 Id. 127. In view of the authorities in this state and elsewhere, we think the true doctrine to be that a deed by one tenant in common of a part of the common property, by metes and bounds, is inoperative as against the other tenants; but if the cotenants, then or subsequently, by a suitable conveyance confirm the grant, the grantee still holding under his deed, it becomes, in effect, operative and binding upon all concerned."
•I am unable to concur in the view that a cotenant, taking a deed without any reservation, thereby assents to the transfer of such an interest as is here conveyed.
The rule must be the same in the case of an undivided interest of a stone quarry, a coal mine, minerals and ores of all descriptions, or any valuable deposit which may exist beneath the surface, as in the case of timber. The grant of mines gives the right to work them, unless there is some positive restraint in the language of the grant itself. Bainb. Mines, 31. Now, complainants' vendors had the *277right to sell the land, and any person, including their •cotenants, had the right to buy. The deeds contained no reservation, but purported to convey the entire fee of the land. Their grantors did not agree that they would not sell, or that they would obtain partition' for the benefit of their grantees. There áre now no cotenants entitled to partition, unless complainants, by their purchase of the timber, are such cotenants; but it was decided in the former •suit that they are not. It is; I think, a sufficient reply that the statute makes no provision for partition in such •cases, and this Court cannot, therefore, assume jurisdiction. Under the clear weight of authority, complainants did not, by their purchase, become tenants in common with the other cotenants, and cannot, therefore, invoke the bene■fit of the partition statute, which is applicable only to joint tenants and tenants in common. How. Stat. § 7850. But, aside from this, the rights of the cotenants and subsequent purchasers from them may be seriously affected if one cotenant may lawfully sell an undivided interest in any valuable thing that may'exist on the land. It is true, in the present case, that their possession would be only temporarily interfered with, for the timber can be speedily .removed; but the purchase of a similar interest in a mine- ■or other like property would entitle the purchaser to the like possession to explore, to erect plants, to remove his ■ore, and he would thus become entitled to the permanent possession of the land, or so much thereof as was necessary for his purpose. Would not this affect adversely the rights ■of the cotenants? May a cotenant convey his interest in the coal to one, in the iron to another, in the clay to ■another, in the stone to another, and so on, and, because their grantor refuses to take steps to secure a partition, or has sold his remaining interest in the land to his cotenants, may they institute partition .suits in the name of their *278grantor, and have the land partitioned, so that each may have possession to work his mines, quarries, or clay beds?
Another difficulty presents itself." If partition of land cannot be made without great prejudice to the owners, it must be sold, and the proceeds divided among the cotenants. Very often, if not .generally, mining lands cannot, be partitioned without great prejudice, and must therefore be sold. Upon such sale, how could the value of an undeveloped mine or other -deposit be separated from the value of the land in other respects, so as to give to the purchaser of an undivided part thereof his proportionate share? Yet by this rule such purchaser would have the right to have the land sold, in order that he might receive the supposed value of what he purchased.
I do not think that such a rule is founded upon reason or authority. Principles must not be determined by the hardships of an individual case. A principle established to relieve from hardship in one case may lead to greater hardships in another. An important principle is here involved, which must be considered and determined regardless of what the complainants may suffer. It is no answer to the principle to say that the action of complainants* grantors in conveying an interest to them, and the rest of the estate to other parties, is a fraud, intentional or constructive. If it was a fraud in fact, complainants have a remedy at law. But there is no question of fraud involved. •Complainants purchased with full knowledge of the facts; so did the defendants and their grantors. The title was of record when complainants purchased the timber, and they are chargeable with knowledge that their grantors held only undivided interests in the land as tenants in common. Defendants also purchased with full knowledge-of the facts. The sole question is therefore one of law.
The decree should be affirmed.