delivered the opinion of the court.
This was an action of ejectment for the lot No. 182 of the Carondelet commons south of the river Des Péres. The suit was commenced in the St. Louis Land Court in January, 1857; and in November, 1863, there was a trial, and judgment for the defendant. An amended answer of the defendant, filed in October, 1863, denied the unlawful entering and withholding of the premises from the plaintiff, or that he was entitled to the possession, and set up as a defence a judgment in partition in a suit which had been commenced in said court in August, 1859, returnable to the October term of that year, in which the plaintiff here was a party defendant, and filed his answer at that term on the 19th day of October, and there was a trial and final judgment of partition *113between the parties thereto (the defendant here also being one]), claiming as tenants in common a larger tract of land, by a title derived under a confirmation to one Martigny, which included the land in controversy in this case. When the partition suit was commenced, the plaintiff Forder held an outstanding claim of title to this lot, under the town of Caron delet, as a part of the Carondelet commons : but the larger tract, including this lot,'was held in possession by the tenants in common under the Martigny title; and the plaintiff here, after the commencement of the partition suit, and before filing his answer therein, conveyed away this outstanding title to a stranger, who still held the same adversely, so far as appears, at the time of the trial of this case. The plaintiff offered evidence tending to show, that the defendant was in possession of the premises at the commencement of this suit, and the defendant ,gave evidence “tending to prove that he was not in possession.
It appeared in evidence that the parties had claimed the larger tract as tenants in common under the confirmation to Martigny, and held the actual possession of the same under that title. But the plaintiff here having acquired the outstanding Common titles to three lots situated within this tract, these were allotted to him, at his instance as a party defendant in the partition, as part of his portion; b.ut this fourth lot (182), the land in controversy, had not been considered in the partition. He now claims that this outstanding Commons title was not adjudicated upon in the partition suit, and that he is entitled to recover the possession thereof in this ejectment, though the land appears to have been allotted to one of the co-tenants as part of his portion. The position assumed'is, that it was only the Martigny title that was divided in the partition, and not this of the Commons; and, in effect, that it was not the land, but the particular title, that was the subject of this partition.
The defendant put in evidence a transcript of the record of a partition suit, previously brought by this plaintiff against his co-tenants for a partition of this same larger tract, held in *114common under the Martigny title, which, after judgment given for a partition to be made, was dismissed by the plaintiff. We suppose the object of this was to show that the plaintiff had claimed possession as a tenant in common with the rest under that title, and that he did not pretend to hold title adversely to his co-tenants. It was not conclusively proved that the defendant was in possession of the premises sued for at the commencement of this suit, holding adversely to the plaintiff. That was a matter for the jury, and the verdict was for the defendant. The evidence showed that the actual possession was held by the tenants in common, with that unity of possession which gives a right of partition. The defendant was not holding possession adversely to the plaintiff here ; nor did the plaintiff claim that he had ever been in the actual possession of the lot in controversy, holding adversely to his co-tenants. Now, before one tenant in common can maintain ejectment against his co-tenants, on an outstanding title, for his own exclusive benefit, he must surrender the common possession (if he has any) to the others, or he must show that the qjther tenants in common are holding adversely to him. A disseizin, or an actual adverse possession, destroys the unity of possession among the tenants in common, and takes away the right of partition—Phelan v. Kelly, 25 Wend. 389; 4 Kent’s Com. 380, n. (c.) An ouster by either would put the other co-tenants to their legal remedy by ejectment. The possession of the other co-tenants, without such ouster, would be his own possession as well. The former partition suit having been dismissed before this ejectment was commenced, the record of that suit would not exclude the possibility of his having taken an adverse possession afterwards of the land sued for, and we do not see that it was entitled to much weight. For some purposes, the mere fact of bringing an action of ejectment might be considered as an assertion of an adverse title and right of possession. The fact of adverse possession was matter of evidence, and the verdict seems to have found that there was none.
*115The judgment of partition establishes the title to the land which is the subject of the partition, and, in an action of ejectment upon an adverse possession, or an adverse title existing at the date of the partition, it is final and conclusive at law upon all the parties to the record, and on all persons holding under them afterwards—Clapp v. Bromagham, 9 Cow. 569. The statute requires that the petition shall, set forth the rights and titles of all parties interested in the premises sought to be divided, and of all persons having, upon any contingency, a beneficial interest therein, present or expectant. It requires the court to ascertain by evidence, by confession, or by verdict, and to declare the rights, titles, and interests of the petitioners and defendants ; and the final judgment, that the partition be firm and effectual forever, is made binding and conclusive on all parties to the proceedings, and their representatives, and on all those claiming under them by right derived after the commencement of the suit. This was the common law form of judgment in partition—2 Greenl. Crui. Dig. 378. It provides further, that if it shall appear that there are parties claiming the same portion adversely to each other, the court may decide upon such adverse claims, or, in its discretion, direct such share to be allotted subject to such claims ; and there can be no doubt, that if any party defendant wholly denied the tenancy in common, and claimed the land adversely to the plaintiffs, he could so answer, and if that issue were found for him, it would entirely defeat the partition as against him. When the title or possession is held adversely, that matter must first be settled, either in the partition suit, when it can be done under the statute, or by an action of ejectment, before a partition can be had, either at law or in equity—4 Kent, 365; 2 Greenl. Crui. Dig. 379. It is only when lands are held in joint tenancy, tenancy in common, or co-parcenary, that a partition will lie under the statute or at common law ; and unless such holding be averred and established, there is an end of the partition — R. C. 1855, p. 1110, § 1.
*116The plaintiff might have asserted his adverse title in the partition suit, or pleaded it in bar, and, if decided against him, he had his remedy by appeal or writ of error. The judgment must be taken as conclusive here, that no such defence was made, or that, if made, it was decided against him. Not having asserted his adverse claims there, they were wholly barred at law. In Spitts v. Wells, 18 Mo. 471, it was even held that an equitable claim for improvements, which might have been asserted in the partition suit, and was not, was'barred beyond relief. It constituted a part of the subject of partition, and the rights and titles of the parties therein were to be ascertained and declared by the court. The whole right and title of the parties iii that subject matter wei’e put in issue, and were necessarily decided upon as between them, and all holding under them after-wards.
It can scarcely be necessary to observe, that parties only, and those holding under them after the commencement of the suit, are bound by the partition ; and where, as in Colton v. Smith, 11 Pick. 311, a mortgagee, or one holding under the mortgagee, is not made a party, he will not be concluded. The question of his title not being in issue, it is not necessarily decided. But parties whose rights and titles are put in issue, and must be ascertained and declared before partition can be made, are conclusively bound. The court has full power to investigate them, and it is the duty of the court to see that they are correctly ascertained and declared, and that the whole title shall be conveyed by the judgment in partition—Owsley v. Smith, 14 Mo. 153 ; Fulbright v. Canefox, 30 Mo. 425. But where the right or title claimed in a particular lot is not the identical subject-matter that was directly in issue on the pleadings between the same parties, the judgment will not be a bar against other persons claiming such right or title in the lot—Farrar v. Christy, 33 Mo. 44.
It is not clear what real benefit it would be to this plaintiff if he could recover here ; for he would unquestionably *117be bound by the warranty implied in the partition as to the subject divided therein, the land itself, in respect to which there was a common title, and that unity of possession and right of partition, which belonged to the parties co-tenants in common thereof. It is said that there was no warranty in partition at common law among joint tenants and tenants in common, as in the case of co-parceners, until after the statute 31 Hen. 8; but tinder that statute, which is part of the common law adopted in this State, there was a warranty, by virtue of which tenants in common, making partition, were bound to deraign the warranty paramount; that is, we suppose, make good to each other the common title to the subject of the partition ; and if it failed in any part by reason of paramount title, the losing party became entitled to contribution from the others, when that title was asserted by another — Rawle on Cov. Tit. 471. There being no covenant, there could be no action at law; but there would be an effective remedy in equity to enforce a contribution among all the parties for the reimbursement of the one that had lost his portion—Sanger v. Cator, 8 Humph. 256. There would seem to be scarcely less justice in compelling this plaintiff, who forebore to assert his right when he might and ought to have done it, (if he ever intended to do it,) when the partition was made, to take upon himself the whole contribution. Such would be the simple effect of holding this partition here to be a conclusive bar to this claim. He owned that claim when he became a party to the partition, and he is seeking to assert it here against his co-tenant, in violation of this warranty. It would have made no difference if that claim had been conveyed back to.him before the trial of this ejectment; for it has been held, in equity, upon just principles and very satisfactory reasoning, that no party to a partition can be permitted to assert an adverse title for the purpose of ousting another party from the portion allotted to him in the same partition, whether it be acquired before or after the partition is made—Venable v. Beauchamp, 3 Dana, 324. This would be so, *118at least, in equity ; and if the matter rested on this alone, the plaintiff might be entitled to recover in ejectment, if there were nothing else to prevent it, and. the defendant would be put to his remedy in equity, on a petition framed with that view.
But the matter does not rest here. It is true, the defendant did not own this adverse title at the date of the trial and judgment in the partition suit; nor was it made a special subject of consideration in making the allotments in partition; but it appears by the record that he was the owner of it when the suit was commenced, and until some three weeks before he filed his answer to the partition suit. It does not appear on what day the process was served upon him, but it is stated the suit was commenced in Adgust, 1859, and his conveyance was made on the first day of October following. It was conveyed, then, after the proceedings were commenced against him. Now the statute expressly declares that the partition shall be binding and conclusive upon all the parties, and on all those holding under them “ by right derived after the commencement of the proceedings ” — R. C. 1855, p. 1115,„§ 26. We decide nothing here, now, concerning the rights of any stranger to the partition, or of any person not a party thereto. But in reference to this plaintiff, we think this judgment operates as a bar against him at law, not only in respect of the estate and title which he then had, but in respect of any title which he might thereafter acquire. There is here no covenant of warranty by deed ; but there is such a thing as an estoppel in pais, and by matter of record, which, like an estoppel by deed, may have the effect to pass an after-acquired title, by operation of law. The partition establishes the title, severs the unity of possession, and gives to each party an absolute possession of his portion. A partition is sometimes altogether the act of the parties rather than the act of the law. This binding and conclusive judgment is, in its very nature, very much like the old livery of seizin under a feoffment, which was matter in pais, or like a fine, or a com*119mon recovery, which was matter of record, and these ancient assurances were of that solemnity and high character, that that they not only passed an actual estate, and devested what title the party then had, but operated by way of estop-pel to pass all future estate and possibility of right which he might thereafter acquire — Sliep. Touch. 2-6, 204-6; Rawle on Cov. Tit. 402; and we see no good reason why this solemn judgment in partition, which the statute declares shall be firm and effectual forever, should not be allowed to have the same operation against all parties to the record.
The result is, that at the date of the trial of this action, the plaintiff had no title or right to the possession of the land sued for, on which he could recover; but as the partition, as well as his conveyance of his title, was subsequent to the commencement of this suit, it does not follow that he had no title or right of possession at that date. But before the trial, his right had ceased to exist by his own act. In such case, the verdict is to be rendered according to the fact, and the plaintiff would, on that alone, be entitled to recover only for damages and costs — R. C. 1855, p. 693, § 14.
The instruction told the jury, in effect, that the plaintiff was not entitled to recover possession of the land embraced within the partition; and there was a verdict for the defendant on the issues, whereby the fact must have been found, that the defendant had not been in possession of the premises, holding adversely, at the commencement of the suit; otherwise the verdict should have been for the plaintiff for the damages and costs. We think the verdict was sustained by the evidence, and that the instruction was properly given.
Judgment affirmed.
Judge Wagner concurs; Judge Lovelace not sitting.