As an adjudication of the right, title or interest of the plaintiff in the common property, the judgment of the court in the special proceedings was a nullity. The plaintiff was not a party to that proceeding in name or by service of process, nor did anyone pretend to appear for or represent him. It is contended, however, that he is effectually concluded and estopped by that judgment as if he were a party thereto, because ten years thereafter he joined Mrs. S. A. Cherry — one of the parties to that proceeding — in a deed to one Brown, conveying one of the lots allotted to Mrs. Cherry, and because reference to that proceeding is made in the deed for a more particular description of the lot. But the deed to the locus in quo was made by Mrs. Cherry several years before the deed to Brown, and while the plaintiff,- it seems from the evidence, was an infant. So that it is now contended that the plaintiff is estopped by a judgment entered in a proceeding to which he was not a party, and by a deed to which he was not a party and of which he had no knowledge, solely because he joined in the deed to Brown. It would seem that the fact that the plaintiff joined with Mrs. Cherry in the deed to Brown was, at least, an asser-r tion of claim by him to an interest in the land conveyed and a recognition of such claim by Mrs. Cherry and the grantee. Otherwise, his joinder was wholly unnecessary. The defendants were strangers to that deed; they assert no title under it. If we concede that the recital in the descriptive clause was a recognition of the special proceedings and could be held an estoppel *94upon plaintiff to deny the existence of the special proceedings and the conclusiveness of its effect, it could be taken advantage of only by the grantee in that deed, or those claiming under him. This is discussed in Lumber Co. v. Hudson, at this term. In Johnston v. Case, 132 N. C., 795, Walker J., speaking for this Court, said: “It must be conceded that the description in one deed may be referred to in another deed for the purpose of identifying and making more certain the lines and boundaries of the land which is intended to be conveyed (Everett v. Thomas, 23 N. C., 252; Reed v. Reed, 93 N. C., 462; Davidson v. Arledge, 88 N. C., 326; Hemphill v. Annis, 119 N. C., 514), provided, as is said in the last case cited, the language used points so clearly to the explanatory deed or instrument as to make it possible to identify it, and provided further, that the deed to which reference is made is produced at the trial.” This is undoubtedly the ordinary purpose, but it may, in exceptional cases, in conjunction with other facts, constitute an estoppel upon the grantor as well as the grantee. The other facts in this case all tend to contradict, instead of supporting, an estoppel against the plaintiff, and would seem to limit the reference to the special proceedings to the purpose of aiding in the description of the lot. "We do not think the doctrine of election applicable to or decisive of this case; this “doctrine rests on the maxim that he who asks equity must do it, and means that where two inconsistent rights are presented to the choice of a party, by a person who manifests a clear intention that he shall not enjoy both, he must accept or reject one or the other; in other words, that one cannot take a benefit under an instrument and then repudiate that instrument.” Fetter on Equity, 51; Tripp v. Nobles, 136 N. C., 99; Norwood v. Lassiter, 132 N. C., 52, in which case several illustrations are given of the application of this doctrine. The facts of this case certainly do not disclose any of the circumstances essential to the application of the doctrine to the plaintiff, certainly to the extent that will in any way inure to the benefit of the defendants. At the most, it can be said that the joinder of the plaintiff in the deed containing the references to the special proceedings, was only a recognition by him that the lots set apart to Mrs. S. A. Cherry in that proceedings were the shares *95of E. D. Cherry and T. A. Cherry, as tenants in common in the lands devised under the will of T. E. Cherry; and the effect of this would be simply to avoid another proceeding for partition. Accepting this as the limit of conclusiveness upon plaintiff of the recital in the deed executed by him with Mrs. Cherry the plaintiff would be tenant in common of an undivided one-half interest in the other parcels of land allotted to Mrs. Cherry; and as the defendants have, by the deed of Mrs. Cherry, become the owners in fee of her interest, it must follow that the plaintiff is entitled to be admitted into possession of the locus in quo as tenant in fee of an undivided one-half interest, and to an accounting for the rents and profits since Mrs. Cherry’s death, and for the timber sold. The life tenant, Mrs. Cherry, could not, by her deed, authorize her vendee to commit waste, nor could the defendant, Tripp, as tenant in common of an undivided one-half interest, commit such waste as “is destructive of the estate and not within the usual legitimate exercise of the right of enjoyment of the estate.” Dodd v. Watson, 57 N. C., 48; 17 Am. & Eng. Enc., 671; McPherson v. McPherson, 33 N. C., 391; Roberts v. Roberts, 55 N. C., 131. Nor can we see, as intimated by his Honor, how plaintiff’s joining-with Mrs.. Cherry in the deed to Brown, with its reference to the special proceedings, was a ratification by him, not only of the land set apart to Mrs. Cherry as the part she was entitled to under the deed of E. I). Cherry and the will of T. A. Cherry — her only sources of title to any interest — but also that she was the owner in fee thereof and that he, the plaintiff, became divested of all interest devised to him under the will of T. A. Cherry. We cannot perceive any element of ratification in this act further than we have already 'suggested as its ultimate limit. If we concede that plaintiff’s act was a recognition of the partition proceedings, to the extent of the allotment to Mrs. Cherry as the shares of E. D. Cherry and T. A. Cherry, the plaintiff, upon the death of Mrs. Cherry, became entitled as tenant in common to an undivided one-half interest in the lands so allotted, the other tenants in common being those claiming under Mrs. Cherry as the assignee of E. D. Cherry. This tenancy in common extended to each separate tract unless, as in the case of the lot sold to Brown, the plaintiff *96bad joined in a deed conveying it. Tbis must be true regardless of, and unaffected by, tbo value of any particular tract. There bas been no partition by deed or otherwise between those claiming under Mrs. Cherry, as the assignee or vendee of R. D. Cherry, and the plaintiff, as the devisee of the fee of the interest of T. A. Cherry under his will. For the reasons given, the judgment of nonsuit will be set aside and the action further proceeded in accordance with the rights of the parties.
Reversed.