#### DEN ex dem. MARY MILLS v. SPIER WITHERINGTON.

A final judgment in a petition for the partition of real estate, under the act of 1789, {Rev. c. 309,) is conclusive upon all the parties to it; and each party is estopped to dispute the title of any other to the lot assigned to that other in severalty.

This was an action of ejectment tried at Pitt, on the last Circuit, before Bailey, Judge. The action was brought to recover a tract of land, which had been before assigned in severalty to the defendant by the final judgment of the County Court of Pitt, in a petition for partition of real estate. The petition was filed by the present defendant and others against the lessor of the plaintiff, stating that they were tenants in common of the lands described in the same, and praying a partition thereof*, and an interlocutory order was made, appointing commissioners, who returned a report, upon which a final judgment was rendered. The lessor of the plaintiff-afterwards, and notwithstanding the judgment in the petition for partition, obtained a grant from the state for the land which had been assigned to the defendant in severalty, alleging that the same was vacant; and on the trial, she rested her title to a recovery solely on the said grant. The defendant claimed under one Frederick Mills, junior, who held an undivided share in the lands by virtue of a deed of gift from his father Frederick Mills, senior, and contended that the lessor of the plaintiff" was, by force of the final judgment in the f for partition, estopped to dispute his title to the land in dispute. His Honor charged the jury, that if the land in dispute was embraced in the deed of gift, under which the defendant claimed, the plaintiff's lessor was estopped. But if the land was not embraced in the said deed, but was vacant at the time when the lessor of *434the plaintiff obtained a grant for it, she was then not estopped by tfye judgment in the petition for partition. The jury returned a verdict for the lessor of the plaintiff; and the defendant appealed.

No'counsel appeared for the defendant,in this Court. .

The Attorney-General, for the lessor of the plaintiff.

Daniel, Judge,

after stating the case as above, proceeded as follows:

We think the judge erred in confining the jury to the question, whether or not the lands in controversy were embraced in the deed of gift from F. Mills, senior, to F. Mills, junior. If the land sought to be recovered by the plaintiff, was embraced in the report of the commissioners,, which report had been confirmed, and final judgment rendered thereon, then, we think the lessor of the plaintiff, who had been a party to that judgment, was concluded, bound, and estopped to controvert any thing contained' in it. The legislature, by the act of 1789, {Rev. c. 309,) gave to tenants in common of real estate the petition for partition, in the place of the ancient writ of partition. The final judgment at common law in a writ of partition, runs thus, ideo consideratum est quod partitio prcedicta firma et stabilis in perpetuum teneatur. Thomas’s Coke, 700. And it was conclusive on the parties, and all claiming under .them. (Ibidem, note 55.) In Clapp v. Bronagham, 9 Cowan’s Rep. 569, the Court say that the judgment in partition, it is true, does not change the possession, but it establishes the title, and, in an ejectment, must be conclusive. The judgment of the Court, adjudging a share to belong to one of the parties, and allotting it to him to hold in severalty, must be sufficient to authorize him to recover it as to all the parties to the record;- the judgment is, as to them, an estoppel. The act of 1789 gives the same force to a final judgment' in a petition for partition of real estate. It declares, that the division when made, shall be good and effectual in law to bind the parties, their heirs: and assigns.

Per Curiam. Judgment reversed-