The question to be determined is whether, upon the case stated in the petition, the appropriation of the land in question by Thorn as vacant land enured to the benefit of the plaintiff’s testator? In Van Horne v. Fonda, (5 Johns. Ch. R., 388,) Chancellor Kent decided that one of two devisees could not *735 purchase an incumbrance on their joint estate and use it to sell the land, and to strip the other of his property. The chancellor said: “I will not say that one tenant in common may not, in any case, purchase in an outstanding title for his exclusive benefit. But when two devisees are in possession under an imperfect title, derived from their common ancestor, there would seem naturally and equitably to arise an obligation between them, resulting from their joint claim and community of interests, that one of them should not affect the claim to the prejudice of the other. It is like an expense laid out upon a common subject, by one of the owners, in which case all are entitled to the common benefit on hearing a due proportion of the expense. It is not consistent with good faith, nor with the duty which the connexion of the parties, as claimants of a common subject, created, that one of them should be able, without the consent of the other, to buy in an outstanding title, and appropriate the whole subject to himself, and thus "undermine and oust his companion. It would be repugnant to a sense of refined and accurate justice. It would be immoral, because it would he against the reciprocal obligation to do nothing to the' prejudice of each other’s equal claim, which the relationship of the parties, as joint devisees, created.” (Ib., 407.)

In accordance with these views, it seems to be well settled, that joint tenants and co-parceners stand in such confidential relations in regard to one another’s interest, that one of them is not permitted in equity to acquire an interest in the property hostile to that of the other; and, therefore, a purchase, by a joint tenant or eo-parcener, of an. incumbrance on the joint estate, or an outstanding title to it, is held at the election of his co-tenants within a reasonable time, to enure to the equal benefit of all the tenants upon condition that they will contribute their respective ratios of the consideration actually given. The same equity has been considered as subsisting between tenants in common, where they hold under the same instrument. And where two tenants in common, who had heai-d of an adverse title, and agreed to join in defending against it, or in purchasing it, it was decided that one of them who purchased the adverse title for a small sum, must hold it in trust for the other, upon that other paying his proportion of the purchase *736 money. (Cited in Smiley v. Dixon, 1 Penn., 441.) But, it is said in the notes to the leading case of Reich v. Sanford, upon a review of the authorities, that “tenants in common probably are subject to this mutual obligation, only where their interest accrues under the same instrument, or act of the parties or of the law, or where they have entered into some engagement or understanding with one another; for persons acquiring .unconnected interests in the same subject, by distinct purchases, though it may be under the same title, are probably not bound to any greater protection of one another’s interests, than would be required among strangers.” (1 L. Cases in Eq., 74, 75; Matthews v. Bliss, 22 Pick., 48.) This is believed to be a proper qualification of the doctrine as applied to tenants in common; and applied to the present case, it can not, we think, bo held that the title acquired by Thorn enured to the benefit of plaintiff’s testator. Their interests did not accrue under the same instrument, but they purchased at different times, by different instruments; and there is no averment of any agreement between them respecting the title. It is averred that the defendant’s testator had brought suit to recover the possession, and gave notice to the plaintiff’s testator of the pendency of the suit, and requested him to furnish counsel to assist in the prosecution of it, which he did. This can scarcely be said to be a sufficient allegation of an agreement between the parties to unite in defending and upholding the title. It is the statement of evidence tending to the proof of such an agreement rather than of the agreement itself. It is to be observed that it is not averred that Thorn was ever in possession, or that he had any superior knowledge or means of information respecting the state of the title, or that he made use of his co-tenancy to obtain an advantage. The only complaint is, that he located the land and obtained the title from the government without giving notice to his co-tenant. But so far as appears, his co-tenant had equal knowledge and opportunity to secure the land for himself, if he saw proper. It appears by the petition that others, as well as Thorn, were aware of the condition of the title, and had already located a considerable portion of the land.

This brings me to notice another aspect of the case which, to *737 my own mind, is decisive. It is not averred that the supposed title purchased of Sterne was of any value; and I think it may he inferred from the petition that it was worthless, and the land in fact vacant. If such was the case, the parties acquired nothing by their purchase, and consequently had no title or estate to create a tenancy in common. The doctrine we are considering applies where there is a community of interest in a defective title, or a superior outstanding title or incumbrance. If the inference I deduce from the statements of the petition be correct, this is not the case of a defective title, but of a want of title. In such a case, in Pennsylvania, where two persons had purchased from a third who was supposed to have a title, but who, it was afterwards ascertained, had none, the Supreme Court held that there was nothing in the supposed co-tenancy to prevent one of the parties from appropriating the land for his own exclusive benefit. (Smiley v. Dixon, 1 Penn. R., 441.) The parties took nothing by their purchase; they were not joint tenants or tenants in common, and there was no privity between them. The court recognized the doctrine which forbids one tenant to do any thing to the pre-. judice of his co-tenant in its full extent, but denied its application to such a case; observing that there was no privity, no confidence between the parties, and nothing done by the one to induce the other to purchase, or to confide in their purchase. The land was vacant, to be taken by the first occupant; and there existed no obligation between the parties to prevent its appropriation by one of them. These observations apply in their full force to the present case in my view of it. There was no privity between the parties; they acquired nothing by their purchase; and there was no relation of confidence or community of interest to prevent the appropriation of the land by one of them. I mention this view of the case only as the one which is most satisfactory to my mind.

We are of opinion that there is no error in the judgment, and that it be affirmed.

Judgment affirmed.