The appellant, a boy of ten years of age, was committed to the care, control, and restraint of the institution, and his petition brought by his next friend, Thomas, alleges that without fault on his part one of the servants and employees of the appellees, and known by it to be incompetent and unfit for such service, struck and beat the appellant in such cruel and inhuman manner that he was caused great suffering in mind and body, and was permanently injured and damaged, etc. To this petition a general demurrer was sustained and the petition dismissed. The correctness of this judgment is the question on this appeal, and, while it has been determined directly, the general principles are well established. The functions of the institution are governmental. As said in Farnham v. Pierce, 141 Mass. 203, 55 Am. Rep. 452: “It is a provision by the commonwealth, as parens patriæ, for the custody and care of neglected children, and is intended only to supply to them that parental custody which they have lost." In Perry v. House of Refuge, 63 Md. 20, 52 Am. Rep. 495, it was held that an action does not lie against a state house of refuge for an assault made on an inmate by an officer thereof. It is there said: "Youths, in whom the seeds of vice have already germinated, are placed there under proper restraint, 253 so that the growth of crime may be arrested or eradicated in its incipiency. Funds are contributed by individuals impelled by philanthropic motives, and donations are obtained from municipal and state treasuries. These are the funds of the institution, controlled by the managers, not for their own profit or benefit, but solely for the charitable purposes designated by its organic law. . . . . Several of the most eminent judges in England expressed themselves with much emphasis in opposition to an allowance of damages out of a fund so held by fiduciary agents"; and the principle determined in a number of English cases that "damages are to be paid out of the pocket of the wrongdoer, and not from the trust fund," was approved. It is contended that these cases followed the older decisions in England, and that the latter have been since overruled. Be this as it may, the principle announced seems entirely just and reasonable. If the funds of these institutions are to be diverted from their intended beneficent pur poses by lawsuits and judgments for damages for negligent or malicious servants, their usefulness-indeed their existence-will soon be a thing of the past. The judgment dismissing the petition is affirmed. ASSAULT BY OFFICER OF STATE CHARITABLE INSTITUTION. -An action does not lie against a state house of refuge for an assault on an inmate by an officer thereof: Perry v. House of Refuge, 63 Md. 20; 52 Am. Rep. 495. The state is not answerable in damages for injuries sustained by a convict in its prison through the negligence of the prison officers: Clodfelter v. State, 86 N. C. 51; 41 Am. Rep. 440, and note. One who sustains an injury at a public hospital for unskillful surgical treatment by an unpaid attending surgeon may maintain an action against the hospital therefor though it is a public charity and the plaintiff paid nothing but a small amount for board and attendance: Glavin v. Rhode Island Hospital, 12 R. L. 411; 34 Am. Rep. 675. JONES V. Bigstaff. [95 KENTUCKY, 895.] A PARTITION BECOMES EFFECTIVE if made under a division directed and confirmed by a county court, and the respective parties take and hold possession in accordance therewith, though no deed of partition is executed. TO EVERY PARTITION OF LAND THE LAW ANNEXES A WARRANTY, whether expressed in the deed or not. PARTITION. THE IMPLIED WARRANTY resulting from a partition of land does not extend to, nor operate in favor of, purchasers from the original parties to such partition. The benefit of such warranty is confined to the parties to the partition and their heirs, and does not, as in the case of an express warranty, extend to their vendees. STATUTE OF LIMITATIONS TO AN ACTION UPON AN IMPLIED WARRANTY resulting from the partition of real property does not commence to run until there has been an eviction by a superior title. Z. T. Young and William H. Holt, for the appellants. 396 PRYOR, J. John Jones, a resident of Bath county, died testate in March of the year 1851. He owned a large tract of land, and in the month of November of the same year (1851) a division of this land was made between his children under an order of the Bath county court. The report of division was confirmed, but no deed of partition was executed by the parties, but each child took possession of his allotment, and the division must be regarded as effective as if a grant had been expressly made by the one to the other. The testator left five children and two grandchildren, In the the children of his deceased daughter, Polly Jones. partition there was allotted to James R. Jones, one of the children, and who was the father of these appellants, three hundred and sixty-six acres and two roods of land; Nancy Jones, the widow of the testator, got three hundred and five acres as her share; David L. Jones, three hundred and thirty acres; Lydia Boyd, three hundred and one acres; Thomas Jones, three hundred and thirty-five acres; Elizabeth Bridges, three hundred and fifty-four acres, and the children of Polly Jones, three hundred and thirty-two acres. James R. Jones, who obtained in the partition three hundred and sixty-six 397 acres of land, died in the year 1859, leaving children, some of whom are the appellants in this case. In the tract of land of three hundred and sixty-six acres allotted to James R. Jones was embraced land that was claimed by the heirs of one Tydings, and in the year 1868 the heirs of Tydings brought an action to recover it, and Daniel R. Jones, the principal appellant here, was a defendant to that action. His father, James R. Jones, had, by a regular conveyance in his lifetime, sold to his son, Daniel R. Jones, one hundred and seventy-five acres of this land, the title to which was in dispute; and Daniel R. obtained fifty acres and a fraction, by inheritance from his father, that was included in the original partition that was also in dispute. The action instituted by the heirs of Tydings against Daniel R. Jones and others ended in the year 1881 in a recovery by Tydings' heirs of the one hundred and seventyfive acres conveyed him by his father, and of the fifty acres that he had inherited from him, and that had been allotted to his father in the original partition between the heirs or devisees of John Jones. The present action was instituted by Daniel R. Jones and James M. Jones, his brother, to recover, by way of contribution from the original partitioners under the will of John Jones, their proportion of the loss sustained by reason of the recovery of this land by Tydings' heirs, James M. Jones having lost in the recovery fifteen acres that had been allotted in the original partition. Their action was dismissed. The contention of the appellees is: 1. That James R. Jones, the father of the appellants, and one of the original partitioners, by a verbal agreement with the other 398 devisees under the will of John Jones, agreed to risk the title upon their giving him more land than was allotted the other devisees, knowing at the time the defect in the title; 2. They cannot maintain the action because the implied warranty arising from the partition does not run with the land, and operates only as between the original parceners or tenants, that gives the right to a redivision and nothing more; 3. The statute of limitations that began to run as soon as the partition was made and confirmed. As to the first ground of defense relied on, it is sufficient to say, if otherwise available, it is not sustained by the testimony, the proof conducing to show the land of the appellants' father was of no greater value than that allotted the other devisees, with other testimony showing that while the defect in the title was talked of, it was at the time supposed that the codevisees, if the land was lost, would be liable to contribute. There is nothing in this defense. The second and third grounds of defense are questions of more importance, and have not been heretofore decided by this court. Section 6 of chapter 23 of the General Statutes provides: "When any real or personal estate shall be devised to any one of the heirs at law of the testator, and the title to the same, or any part thereof, shall prove invalid, such devisee shall have contribution from the others, unless it shall appear from the will that such was not the intention of the testator." By reason of this statutory regulation, as well as the rule of equality recognized by courts of chancery, one of these joint devisees losing a part of the estate devised, by a paramount title, would be entitled to contribution from the others, and 399 the question as to whether an alienee from one of the devisees can recover contribution of the original devisees under this implied warranty of title to his vendor, arising from the partition, must first be determined. The appellant Daniel R. Jones purchased from his father one hundred and seventy-five acres of this land recovered by the Tydings, and obtained his father's deed with a warranty of title. James M. Jones sold his right, he having lost nineteen acres, and his vendees are not before the court. It is maintained by counsel for the appellants that an implied warranty of title arising by operation of law, or from the statute, upon the making of a partition by the judgment of a court of competent jurisdiction, like an express covenant of warranty, runs with the land, and therefore the alienee of one petitioner or one of the tenants in common, when rightfully evicted, may maintain the action for contribution. In Venable v. Beauchamp, 3 Dana, 321, 28 Am. Dec. 74, it is said: "To every partition of land the law annexes an implied warranty, whether expressed in the deed or not." Each partitioner becomes the warrantor of the other; but, as said in the case cited, the warranty in such cases is special, not only with regard to the person or persons who may take advantage of it, but also with regard to the amount of recompense. Under the common-law rule there was no such doctrine as that of an implied warranty as between joint tenants and tenants in common, because they could not be compelled to make partition, and when making voluntary partitions there was no reason why they could not contract for themselves and insert express warranties to secure 400 them against loss by a paramount title; but in case of coparceners a partition could be compelled, and therefore the implied warranty arose, by operation of law, for the protection of the parceners. In this state a division could be compelled, although the devisees held as purchasers, and this division was had under an order of court with the jurisdiction to require the division in opposition to the wishes of every one of the devisees. And to what extent this implied warranty goes when the tenancy is severed, whether the parties are coparceners, joint tenants, or tenants in common, is the question. Does the privity exist between the heirs of one of the tenants, dead, and the surviving tenants, and does it extend further and authorize a recovery by the vendee of one of the tenants after partition and an eviction by a superior title? Where the tenant, whether holding as a coparcener, joint tenant, or in common, dies, his right as against his cotenants, with reference to the joint title to land, passes to the heir, either for the purpose of demanding partition or exacting contribution where there has been a partition and an eviction. The privity of estate is not destroyed by the death of one of the tenants whose right and title pass by operation of law to his heirs. Their right to recover, if the ancestor could, is not doubted, but we cannot well see how the im. plied warranty passes to the alienee or vendee. The conveyance severs the relation, and places the parties in a position where neither the cotenant or his vendee can demand a redivision. The law creating the division provides against loss by the implied warranty, but this extends only to the parties and their heirs, and 401 not to those who be |