[Patterson v. Lanning.] the remaining parceners to make a partition of the lands. But in the case of joint tenants or tenants in common, they having become such by their own act, could not at the common law compel a partition. It was competent for them, however, to make partition by agreement. But then if they made partition, without annexing an express warranty or condition to it, so that if any one of them should thereafter be evicted of his part, or any portion thereof, by a title paramount, he should have right to claim a new partition or compensation from the rest for his loss, the law would not imply any thing of the kind, as it would in the case of parceners, who became invested with their rights to the land by act of the law. By virtue of the condition annexed, by implication of law, to a partition of lands, made between parceners by consent or deed, if any one of them should be evicted afterwards from any part of her allotment, however small or insignificant, she might re-enter upon the other parceners or their heirs, and thus annul the whole partition; or she might, at her election, by virtue of the warranty annexed to the partition by law, vouch them when sued for her part or any portion thereof, in which case, she would only be entitled to have a recompense for the part actually taken from her. Co. Lit. 173 b, 174 a; Bastard's case, 4 Co. 121; 4 Cruize Dig. tit. 32, Deed, chap. 24, sect. 34. So if there be two coparteners of certain lands with warranty, and they make partition of the lands, the warranty shall remain, because they were compellable from the first to make partition. Co. Lit. 165 a, 165 b. The law, however, is different as to joint tenants, who at the common law were not compellable to make partition; and hence, if they hold their lands under warranty, and make partition thereof without writ, the warranty will be destroyed. Co. Lit. 187 a. And besides it would seem as if the legislature intended, by the act of 1794, that the children of an intestate, dying seised of lands situate within the state, as also his other lineal descendants of a more remote degree, when nearest to him, at the time of his death, and standing in the same degree of relationship to him, should succeed to the lands by descent, and hold the same as coparceners, or else, why use, in the close of the second clause of the third section of the act, the following words:" such estate shall descend, and be distributed to the said. several persons, as tenants in common, in equal parts, however remote from the intestate the common degree of consanguinity may be, in the same manner as if they were all daughters of the person dying intestate.' The words here," in the same manner as if they were all daughters," may, very fairly, I think, be regarded as having a reference to the manner in which lands descended to coparceners in England, according to the rule of the common law; for by it, two or more daughters there, being the only issue of the intestate, at the time of his death, his lands descended to them as parceners; that is, each taking an equal interest therein, with a right to compel partition. Lit. sect. 241; 1 Inst. 164 b. The words [Patterson v. Lanning.] just recited, were no doubt used in contradiction to the rule, which governed in the case where the issue consisted of sons, or sons and daughters, which was, that the eldest son in being at the time of the death of the ancestor, took the whole of the lands by descent. It is true, however, that these words seem by their position to be placed in immediate connection with the second clause of the section; which provides for the lineal descendants of the intestate, standing in equal degree to him, but in a more remote one than children; and therefore might be said, not to be applicable to the first clause, which embraces the children only of the intestate. But as no sufficient reason can, I apprehend, be given why the legislature should have designed to make a distinction in this respect, between the children and the more remote issue, in a direct line, of the intestate, the words may be considered as explanatory of the manner in which it was intended, either should hold the lands. The parties, therefore, to the deed of partition given in evidence here, must be considered as resembling coparceners in many respects, at least if not in all. They acquired the lands by descent or act of law, as coparceners do in England; and by the same law under which they acquired the lands, they were rendered liable to make partition of them. So in regard to the privity that existed between them, it would seem to have been threefold, as in the case of coparceners: first, in estate; second, in person; and third, in possession; and not like as it is between tenants in common created by their own act, where there is no privity except that in possession. Co. Lit. 169 a. Seeing then, they were created tenants in common by the act of the law, without any act whatever of their own; and that the same law also rendered them liable to make partition at the will and pleasure of any one or more of their co-tenants, it would therefore seem to be right, not only on the ground of analogy, that a partition having been made between them by deed, the same warranty and condition should be considered as annexed by law. thereto, as if they had been parceners; but likewise on the ground of reason, it would seem to be requisite that they, as also tenants in common, created in this state by our law of descents, should be regarded as coparceners, in order that their partition, by deed, of the lands held in common by them, shall not have the effect of destroying any previous warranty made, securing the lands to their ancestor, as might, perhaps, be the case, were they to be considered in the light of tenants in common created by purchase. We, there fore think, that Charles F. Wells was interested in the event of this action, in favour of the party who called him, and that the court below, for this reason, erred in permitting him to testify in her favour. Judgment reversed, and a venire de novo awarded. Gore against Kinney. In an action of ejectment founded upon a legal title, the plaintiff is not required to tender the money due to the defendant upon his equitable claim before suit brought; but if the action be founded upon an equitable title, the plaintiff, to entitle him to recover, must not only tender the money before suit brought, but he must also have it in court ready to be paid in the event of a verdict for him. WRIT of error to the common pleas of Bradford county. This was an action of ejectment for a tract of land by Samuel K. Gore against George and George W. Kinney. The facts of the case seemed to be, that the land in controversy had been sold in 1834, at sheriff's sale, as the property of the present plaintiff, and purchased by William H. Overton for 625 dollars, who conveyed to the present defendants. The proof was, that at the time of sale, an arrangement was made between the defendant in the execution, the present plaintiff, and the purchaser, that, if the property was sold to William H. Overton, upon whose judgment it was sold, he, Gore, should have the right to redeem the same, by paying the purchase-money in five years. It was a fact submitted to the jury, whether Gore was to pay the amount for which the land was sold to Overton, or whether he was to pay the amount of his judgment upon which it was sold. Kinneys, the present defendants, had notice of the facts when they purchased. Before this suit was brought, the plaintiff tendered to the defendants 600 dollars in specie, and demanded a conveyance of the land, which was refused. The plaintiff did not bring the money into court in the trial of the cause. In addition to the defence on the merits, the defendants contended that the plaintiff was not entitled to recover-1. Because he had not tendered a sufficient sum. 2. That he had not brought the money into court and offered to pay upon a verdict in his favour. Conyngham, president, was of opinion, that the latter ground was fatal to the plaintiff's action, and directed a verdict against him. Baldwin, for the plaintiff in error, cited Litt. sect. 334; 8 Serg. & Rawle 150; 3 Peters' Dig. 625; 7 Watts 287; 6 Watts 534; 1 Watts 180; 4 Rawle 141; 5 Bac. Ab. 11. Williston, for the defendant in error, cited 5 Serg. & Rawle 323, 383; 3 Rawle 26; 8 Serg. & Rawle 497; 10 Serg. & Rawle 41; 4 [Gore v. Kinney.] Watts 286; 10 Serg. & Rawle 17; 7 Serg. & Rawle 348; 3 Serg. & Rawle 423. The opinion of the Court was delivered by SERGEANT, J.-This case depended chiefly on questions of fact, which seem to have been submitted by the court to the jury, and in relation to which we are not called on to express an opinion. The only point of law concerning which a doubt has been entertained, is as to that part of the charge in which the court instruct the jury that the plaintiff' would not be entitled to recover, unless, in addition to the tender made before suit brought, he now brings the money into court ready to be paid over to the defendant if the verdict of the jury should be for the plaintiff; and that not having done or offered to do this, he could not recover, and the verdict must be for the defendant. It is contended by the plaintiff, that having tendered the money before suit brought, it was unnecessary to do so again on the trial, but that every purpose might be effected by a conditional verdict. Upon looking into the authorities, however, the principle stated by the court has been too well established to be called in question. The distinction has been settled between the case of an ejectment brought on a legal title and on an equitable title. In the case of a legal title, the rule is, that the plaintiff has a right to commence his action before tendering the money due to the defendant on his equitable claims. But in the case of an action of ejectment, founded on an equitable title, the plaintiff must not only tender the money before suit brought, but he must also have it in court ready to be paid to the defendant in case of a verdict for the plaintiff. Youst v, Martin, 3 Serg. & Rawle 432; Peebles v. Reading, 8 Serg. & Rawle 496; Moody v. Vandyke, 4 Binn. 41. In Minsker v. Robenson, 2 Yeates 346, the court say, the general rule must be, that the purchaser who seeks for redress under articles, must bring his money into court, in order to show his readiness to perform his contract. The adversary may, however, if he pleases, modify or relax the rule. And the case was adjourned till afternoon, and then till morning, to give the plaintiff an opportunity of bringing in the money. But not being done, he suffered a nonsuit. The instruction of the court below therefore was correct. Sorber against Willing. In order to give title to land by the statute of limitations, there must be an actual and uninterrupted occupancy of it for twenty-one years. An occasional occupancy, and an uninterrupted use of the land as a wood lot, together with the payment of taxes, will not give title. ERROR to the common pleas of Luzerne county. This was an action of ejectment by Richard Willing against Philip and Jacob Sorber. The plaintiff exhibited a perfect legal title to the land. The defendants relied upon the statute of limitations, and to avail themselves of it, proved that their father had gone upon the land in 1812, and built a saw-mill, which continued in operation about four years, when the dam was carried away by a freshet, and he, residing upon another tract of land about one mile off, continued to use the land by cutting timber from it every year; the saw-mill went to decay, and he sold the land to his son Philip, one of the defendants, who continued to use it every year in the same way, by cutting timber from it, until 1830, when he built another saw-mill upon it on another site; in the same year Jacob, another son, entered upon the land, made an improvement, and cleared a few acres of the land; this improvement and the sawmill was continued, and all the taxes were paid up to 1838, when this ejectment was brought. The court below (Jessup, president) was of opinion, that nothing less than an actual continued possession of the land for twenty-one years, would give title under the statute of limitations; and that evidence of the defendants having occasionally occupied the land, and always used it as wood-land, although they and those under whom they claimed, had paid all the taxes for the land since 1813, yet they were not entitled to recover, and instructed the jury to find for the plaintiff. Wright, for plaintiff in error, cited 17 Serg. & Rawle 350; 3 Watts 73; 7 Watts 134, 566; Serg. Land Law 223; 10 Serg. & Rawle 306. M'Clintock and Woodward, for defendant in error, cited 7 Serg. & Rawle 137; 1 Serg. & Rawle 118. The opinion of the court was delivered by GIBSON, C. J.-In Wright v. Guier, 9 Watts 172, we held, that the use of an unseated tract of land as a wood lot, is not an adverse possession to bar an action of trover for wood cut from it; and it is |