#### MARY GARRETT vs. WILLIAM WHITE.

The sheriff’s deed alone for land sold for taxes will not pass the title, but it must appear that the taxes, .for which the sale was made, 'Were due, his authority to sell.

In a suit in equity for partition of land, from the very nature of .the case, relief can be given, where the titles alleged are legal, only where the title is admitted, or has been established at law, or, at the least, is very clear.

But Where the title is denied and the defendant sets up a sole and adverse possession, a Court of Equity cannot proceed, until the party who asks the par. tition, re-establishes at law the unity of possession in himself with the co-tenant. A Court of Law can alone decide upon a legal title or an alleged ouster,

in such a case the regular course of the court is, to retain the bill allowing the party competent opportunity for trying the title and recovering the possession of the undivided share in an action of ejectment; and the court will require the defendant in such action to admit his actual ouster of the plaintiff from the tract alleged to be held in common.

The cases of Jlvery v Rose, 4 Dev. 549, and Rutland v Stewart, 4 Dev. & Bat. 386, cited and approved.

This cause was removed on affidavit of the defendant from Washington Court of Equity, at Spring Term, 1843, to the Supreme Court,

■ The bill was filed in August, 1841, for the partitition of a tract of land, described in the pleadings. One William White, the defendant’s father, being seized of the land in fee, devised it by his will, dated the 16th of April, 1823, to his wife Asha White for term of her life, with remainder after her death to the testator’s two sons, Solomon White and William White, the defendant, equally to be divided between them. The bill states, that Solomon White sold and conveyed his undivided moiety in remainder to Joseph Garrett on the 16th of August, 1831, and that Joseph Garrett devised it to the plaintiff, then the wife of the said Joseph, and died in 1835 ; that Asha White, the tenant for life, had lately died, and that William White had then entered into the actual possession of the land, and held it in common for himself and the plaintiff; that the plaintiff’ had applied to him i© make an equal partition with her, but that he refused, on the *132pretence, that Asha White had let the public taxes due npf°r year arreai'> and that, during her lifetime, to wit, on the 4th of July, 1839, the said land was (ju]y SP,t Up by the sheriff for sale, for the taxes, viz, $6 21, and that the said William became the purchaser of 219 acres, part of the said tract, for the taxes due on the whole, and took a deed therefor. The bill further states, that the transactions thus pretended took place without the plaintiff’s knowledge, and that, after being informed thereof, she offered to pay to the defendant one half of the sum he had paid and all the expenses by him incurred, and requested to be let into actual possession with him and that he would release to her one half of the land ; and the bill charges, that, if the defendant’s purchase for the taxes and the sheriff’s deed of conveyance should give him a good title at law, yet that in equity she is entitled equally with him upon a proper indemnity for the moneys he has laid out; and it prays a decree for partition and conveyances accordingly.

The answer admits the devises by William White the father, as stated in the bill; and also the conveyance from Solomon White to the plaintiff’s husband Joseph Garrett. But it states, that, although the latter is in form an absolute conveyance, yet that there was an understanding between Solomon White and Garrett, that the former might redeem; though upon what terms is not stated. The answer further states, that the defendant, at a public sale by the sheriff for the taxes due thereon, purchased a portion of the said land and paid the price and took a deed in conformity to the acts of Assembly, in the life time of Asha White and with a view to gain to himself the further title to the same ; that the estate of Asha White is sufficient to make good the land to the plaintiff; and that the defendant does not believe the plaintiff was ignorant of the sale for taxes, and that she did not offer to refund to him the money paid by him or any part of it. The answer then denies that the defendant is in law, or ought to be considered in equity, a tenant in common with the plaintiff; and insists that he took possession, under the deed to him from the sheriff, as sole tenant of the land, *133and claimed so to be when the' plaintiff filed his bill and long before, and cultivated the same under his said claim his own benefit, without being in any manner accountable to the plaintiff. '

There was a replication, depositions were taken, and the cause set for hearing and sent to the Supreme Court to be heard.

No counsel for the plaintiff in this court.

A. Moore for the defendant.

Ruffin, C. J.

The defendant has given some evidence of declarations of Joseph Garnett, expressing a willingness that Solomon White or either of his brothers might re-purchase the land ; but nothing like an obligatory agreement for redemption is established — even if that could be entered into between these parties.

The title to the plaintiff seems, therefore, to be clear as a legal title, to the undivided moiety of the whole tract, except so far as a title to a part of it may have been lost by the purchase of the defendant for taxes. For the residue of the tract, not sold for taxes, the plaintiff’s title is unquestionable ; and she has a right to partition at least of that part, since the sole seisin or adverse possession, insisted on by the defendant, extends no farther, as we understand him, than the 219 acres included in the sheriff’s deed. But as that residue is only 20 or 30 acres, the court does not think proper to decree partition of that by itself; until it be seen, whether the plaintiff yet has the right at law, or in equity to a share oí the part claimed exclusively by the defendant. Upon that point the onus is on the defendant to shew the plaintiff’s estate to be divested. If this court were to pass on his proofs, we could but pronounce them insufficient in the present state of them. They consist only of a plot of survey, dated 22nd December, 1840, and purporting to be made by Samuel Newberry, the County Surveyor of Washington, shewing the boundaries of 219 acres of land surveyed for William White, which he purchased for taxes, and taken from the tract of land given in by Asha White, there *134being in said tract 257i acres, and a sheriff’s deed for the *anc* ^llls surv'eye-^) dated December 25th, 1840. But the plot is not verified in any manner, nor any proof gjygjj whether the land was laid off, out of the whole tract, as directed by the statute, nor is there any proof that the land was entered for taxes, nor by whom. We have heretofore more than once held, that the sheriff’s deed alone for land sold for taxes will not pass the title, but that it must appear that the taxes, for which the sale was made, were due, as his authority to sell. Avery v Rose, 4 Dev. 549. Peitiland v Stewart, 4 Dev. & Bat. 386. We think it extremely probable, that no such tax was due, as that mentioned in the sheriff’s deed: which is the taxes of 1837 on “a certain tract of land, containing 257é acres, it being the land given in by Asha White for the heirs of Wiliiam White, deceased,” inasmuch as the heirs of William White were not the persons to pay the taxes on this land, nor, indeed, the devisees in remainder, but the tenant for life occupying it. But it is probable the defendant may not have intended to complete his proofs of title, but only to exhibit his deed in support of the allegation in the answer .of adverse and exclusive possession in the defendant; and we think that course the correct one. The jurisdiction of the Courts of Equity to decree partition is conferred in .this State by statute. Rev. St. c. 85. But from the nature of the case, equity can relieve, when the titles alleged are legal, only when the title is admitted, or has been established at law, or, at the least, is very clear. But when the legal title is denied, and the defendant sets up a sole and adverse possession, a Court of Equity cannot proceed, until the party who asks the partition re-establishes the unity of possession in himself with the co-tenant. For the title and the nature of the possession are questions of law, which it belongs to a legal tribunal, including a Judge and Jury, to decide. There have been few applications in this State to the Courts of Equity for partition, because, by the statutes, a mode of doing it at law is given more simple and expeditions, and less expensive ; which is equally effectual except in cases where the title is equitable, *135or, like the present, where the plaintiff claims to be a tenant in common either at law or in equity. Where the title equitable it must be tried by the chancellor, for a Court oí Law is not competent to determine it. For the like reason, where it is legal and denied, or where the defendant avers that he has ousted the plaintiff, the right must be established at law, and the plaintiff get into- possession again. Then the decree in equity will follow, as a matter of course. And it seems now to be the regular course of the court to retain the bill, allowing competent opportunity for trying the title and recovering the possession of the undivided share in ejectment. Blynman v Brown & ux, 2 Vern. 232; Wilkin v Wilkin, 1 John. c. c. 111. So we think proper to direct in this case, that the cause stand over for a year, that, in the mean time, the plaintiff may bring and try an ejectment for one half of the tract of 219 acres claimed by the defendant under the deed from the sheriff, and also for the residue of the whole tract of 2571 acres, unless the defendant shall admit the plaintiff to have title to one undivided half of such residue, and to be in possession there with him ; and if the plaintiff shall bring such action, the defendant is to be required to admit on the trial his actual ouster of the plaintiff from the tract of 219 acres, or that of 257|, as the action may be brought for the one or the other, as above mentioned. Upon bringing to our notice the re-suit of the action at law,, either party can move for further directions * and, in the mean while, all other equity and questions are reserved.

Per Curiam, Ordered accordingly»-