Wade v. Deray

By the Court, Crockett, J.: The plaintiff, Estefana Wade, formerly Estefana Alviso, and one Rafael Alviso, were tenants in common with several other persons of a larger tract, which included the premises in controversy in this action. Whilst thus tenants in common, Estefana and Rafael conveyed by deed to the defendant Deray all their right, title and interest in and to a particular portion of the general tract. The description of the particular tract thus conveyed will be noticed hereafter. Subsequently all the tenants in common agreed upon an amicable partition of the general tract amongst themselves, and upon the particular parcel to be set apart to each of them. For the purpose of carrying the partition into effect, it was mutually agreed between all the tenants in common that they would unite in a deed conveying the whole tract to one Wright, who was thereupon to convey to each of the tenants in common, in severalty, the particular parcel which it had been agreed should be set apart to him or her. This agreement was carried into effect. They all united in a deed to Wright for the whole tract, and he immediately conveyed to each of them in severalty the particular parcel agreed upon. The parcel to Estefana included the tract previously conveyed to the defendant Deray as already stated. It appears that Deray had no notice of the agreement to make the partition, or of the conveyance to Wright, and from the latter to Estefana and the other tenants in common. This action is ejectment in the ordinary form, brought by Estefana and her husband against Deray and those claiming under him, to recover the possession of the premises included in the deed to Deray. The argument on behalf of the plaintiff is, that when Estefana conveyed to Deray all her right, title and interest in the particular tract described in her deed, she had only an undivided interest, which passed by the deed; but that she could not have conveyed, and did not undertake to convey, any greater interest than she then had, and that there are no covenants in the deed by means of which the title which she afterwards acquired through the conveyance from [380]Wright will inure to the benefit of Deray. She claims that through the deed from Wright she acquired a title to the premises therein conveyed which she did not have before, to wit, the title of her co-tenants, and that Deray has no interest in the newly acquired title, and cannot claim the benefit of it. On the other hand, the defendant claims that the conveyance to Wright, and from him to the several tenants in common, was only resorted to as a convenient means of effecting an amicable partition without suit, and had no other effect than to set apart to each of the tenants in common the parcel which he or she was entitled to, and only severed the possession, but did not convey to either of the tenants in common any other or greater interest than he had before.