John A. Miller brought this suit in order to realize the benefit of a deed in trust executed by Lewis Richardson, Jr., to secure a promissory note to Miles, Adams 6 Co. for $7,220, which they had transferred by indorsement to him.
Lewis Richardson, the debtor and grantor, conveyed in trust, for that purpose about 1,000 acres of land, described by sections and subdivisions thereof. The complainant states that William H. Richardson devised a large body of land in Holmes county, containing about 3,000 acres, to Lewis Richardson, Sr., and Sarah, his wife, for life, remainder to their children. The tenants for life have deceased, and the remainder vested in enjoyment in their children, the grand-children of the devisor, seven in number.
In March, 1858, Lewis Richardson, Jr., one of these children and co-tenants, executed the deed in trust in question, describing the land embraced in it as lots 6 and 7 in section 26 ; lots 2, 3, 6 in section 35, township-, range-, and so on, aggregating the above stated quantity. These lands were part of the 3,000 acres, of which Lewis Richardson, Jr., was owner of the undivided seventh. The deed purports to convey the enumerated parcels, or an entire title thereto, and not the undivided seventh interest of the grantor.
Several years subsequent to this transaction, at the suit of two or more of these joint tenants, in the probate court of Holmes county, partition was made of the 3,000 acres among the seven co-tenants, some of whom have sold and conveyed the shares respectively *333allotted to them in severalty. The lot of another has been sold under judgment and execution.
The bill impeaches this'partition as void, for several reasons, because an improper number (four) of commissioners, instead of three or five, were appointed to make the partition; because a stranger, not nominated by the court, participated in the decision and report; because the share allotted to Lewis Richardson, Jr., is inferior in value to the others; because the trustees, grantees of Lewis Richardson, were not parties nor notified of the proceedings.
The bill concedes that Lewis Richardson had only a title to an undivided seventh of the land mentioned in the deed; the several parcels whereof were assigned promiscuously in severalty to the co-tenants. The specific relief sought is a vacation and annulment of the partition, and the appointment of trustees to execute the deed, those named in the deed having deceased.
The appellants, defendants below, make an objection to the complainant’s title to relief, which lies behind those taken in the bill to the partition proceedings, which, if well founded, suspended the consideration of the latter altogether. Joint tenancy is created by the same instrument, a will or a deed, and must have a unity of title and interest, as to nature, duration and quantity. Each tenant is seized of the whole and of every part; each may exercise all reasonable acts .of ownership. Litt. 288; Co. Litt. 186; 4 Kent Com. 394.
The estate is destroyed by breaking up any of its constituent unities. If there be three tenants, and one convey his undivided interest to E., he becomes tenant in common with the other two, who as to each other remain joint tenants. Litt. 292, 294. The distinguishing feature of this estate was the right of survivorship, which could not be defeated by a devise by one tenant of his interest, unless the devisor sur*334vived, and then only hy a re-publication of the will after survivorship had accrued. Co. Litt. 186 b.
Corparceners derive their estate by inheritance; the interests may be unequal, as that of a daughter and the descendants of a deceased daughter, both taking by the same descent.
The 17th and 18th articles of the Code of 1857 have dispensed with the nice distinctions existing at the common law between the several sorts of joint estates, by converting joint tenancy into tenancy in common, unless a manifest intention to the contrary appears, and by making a quit-claim and deed of release operate to convey all the estate which the grantor has.
The common law estate of joint tenancy of the remaindermen, the grandchildren of the devisor, becomes under the statute an estate in common. The early writers have little to say as to the power of the joint tenant, coparcener or tenant in common, to convey as proposed in this deed in trust. They were familiar with conveyances of the undivided interest. If this deed can take effect at all, it would only be to pass such interest as the grantor had.
One joint tenant has not the same control over his estate as the owner of the whole estate. There are restrictions upon his right of alienation. This is an incident of his title. The titles of the several tenants may be derived from different sources, arise at different times. The special characteristic is, that there is only a unity of possession capable of being dissolved by partition. One tenant has no right to select a particular portion of the land, and claim to have it assigned to him on division. The possession is joint and equal to the whole tract. Severance is made on the principle of equality as to value and quantity. The restriction-on the right of alienation, incidental to the title, extends no further than to deprive one of the power to so subdivide his estate by passing to an *335alienee the whole, or less than the whole, of his interest to particular parcels, selected by metes and bounds out of the whole body of the lands. Subdividing his estate in this manner, he most seriously impedes and hinders a partition among the original tenants or their assignees. The effect of such conveyances is to create new tenancies in common in separate parcels. The vendee’s interest does not extend to the whole estate; nor would his right of partition reach farther than a separation of his interest in the several parcels from his co-tenants. The practical result, perfectly illustrating its injurious effects, is furnished by the conveyance in this case. The joint estate embraces about 3,000 acres, capable of subdivisions into seven parts, of about 428 acres each. Lewis R. Richardson conveyed out of this about one thousand acres, designating the specific lots by the subdivisions of sections. To make a partition so as to give the trustees what could in any event pass, would require a division between them and the other six tenants, so as to assign them one-seventh. That might make it impracticable to so partition the whole estate as that each tenant may have a useful and beneficial enjoyment of his part. Therefore, the principle as stated by Kent, 4 Com. 368, is, “that one joint tenant, or tenant in common, cannot convey a distinct portion of the estate by metes and bounds, so as to prejudice his co-tenants or their assigns, as against them such deed is inoperative and void. Numerous cases in the American reports recognize the rule and give it full force. Brown v. Bailey, 1 Metc. 254; Bartlet v. Harlow, 12 Mass. 384; Duncan v. Sylvester, 24 Me. 482; Jeffers v. Radcliff, 10 N. H. 242; McKay v. Welch, 22 Tex. 390; Prim v. Walker, 38 Mo. 98. In Philips v. Tuder, 10 Gray, 82, the co-tenant attempted to convey 64 rods, part of the lot of which he owned an undivided half, which could not be done. *336Such deeds may operate by way of estoppel on the grantor, but will not, on the objection of the other joint owner, be permitted to stand.
If this conveyance were permitted to stand, with all the virtue claimed for it, it would break up the partition already made, and involve parties who by mesne conveyances acquired interests under it, in very great confusion. What would be the attitude of the purchasers of the several interests ? Some of them by their acts have recognized the division. None of them have objected to it, or taken steps to vacate it. The relief sought by the complainant is a most manifest illustration of the fitness and wisdom of the rule, and proves that this is a fit case for its application.
We are of opinion that the complainant has no right to call in question,- or interfere with the partition which has been made. Nor can he, under his deed of trust, subject to sale any of the lands named in the decree, which have been allotted to the other co-tenants of Lewis Richardson. If, however, the whole, or any part of the lands embraced in the deed of trust were assigned in severalty to Lewis Richardson, he may, by the deed in trust, be estopped to deny title in the trustees as to them, and they may be sold under the deed. If third persons have acquired interests, however, we express no opinion in prejudice of their rights.
We think there was error in the decree of the chancery court; and, rendering judgment here, we sustain the separate demurrers of the defendants to the bill. As the complainant may have a right to satisfaction of his debt out of some of the lands conveyed, we remand the cause, to give complainant opportunity to amend his bill. If not amended, as we have indicated, the- chancery court will dismiss the bill.