¶1delivered the opinion of the Court. This is a writ of entry, in which the demandant demands one undivided sixth part of a lot of land which, as it was proved or admitted at the trial, the parties, in. the year 1835, held as tenants in common, the demandant owning one sixth part, and the remaining five sixths belonging to the -tenant. The question on which the case turned at the trial, arose from a mistake as to the southerly line of the lot held in common. This line was established by uncontradicted evidence, running a straight line from certain staddles at the southwest corner of the lot to a stake and stones on the southeast corner. The tenant claimed the whole of the lot northerly of this line, which was assigned to him as his purparty, on his petition for partition against the demandant in the year 1836, he then supposing that the southerly' line of the lot was twenty or thirty rods to the southward of the staddles. The demandant made no defence in that suit, but was defaulted, and a regular judgment for partition was entered conformably to the above assignment by the commissioners appointed by the court to make partition. The mistake was caused by the proceedings under a probate warrant for the par tition of the southerly lot adjoining the let in question. The dividing line between the two lots was fixed by the dividers. *319under that warrant, in conformity to the tenant’s claim. But this partition was never completed, as no return was made to or accepted by the judge of probate. It was therefore a mere parol division of the estate which is not binding on the parties.
¶2The only question, therefore, now to be determined is, whether the demandant’s title is barred by the judgment in favor of the tenant in his suit for partition ; and this. question depends on the construction to be given to the Revised Stat. c. 103, §43. That section provides, that “if any person, who has not appeared and answered as aforesaid, shall claim any part of the premises mentioned in the petition, as a part-owner with those who were parties to that suit, or any of them, and if the part or share so claimed was not known, or not allowed and left for him, in the process for partition, he shall be concluded by the judgment, so far as it respects the partition ; but he shall not be prevented thereby from bringing an action, for the share or proportion claimed by him, against each of the persons, who shall hold any part of the premises, under the judgment for partition.”
¶3The present case, as it appears to the Court, comes within the true meaning and intention of this section, so that the demandant is thereby entitled to maintain his action, notwithstanding the judgment in the process of partition.
¶4The demandant did not appear and answer to the petition for partition. His share in the common property was not allowed and left for him in that process, but the whole property was erroneously assigned to the tenant. And we think he is not concluded by the judgment, so far as respects the partition ; for that clause in the section manifestly applies only to cases where more than two are the tenants in common. In the present case, the premises were held by the demandant and tenant and there were no other co-tenants. The recovery consequently by the demandant of his share will not disturb the rights of any other parties, which was intended to be prevented by the clause in question. We are, therefore, of opinion, that the judgment in the process of partition is no bar to the present action.
¶5As to the question, whether the deed of a part of the com*320mon property by metes and bounds, by one of several tenants, is void, or voidable only by the other cotenants, it is well established that such a deed is voidable only by the cotenants or some one of them, and is valid against all other persons.
¶6 Judgment on the verdict.