to B; but B never made any conveyance to A. A's grantee brought his petition in equity, stating these facts, and praying that the partition might be confirmed by decreeing the legal title. The Court in which the petition was filed decided that it did not state facts sufficient to constitute a cause of action. The Supreme Court reversed the decree of dismissal, in its opinion by Adams, Judge, saying: "Although it is laid down that a parol partition is good as between the parties, yet it seems to me that the equitable title only passes, which by adverse possession may ripen into a legal estate. In my opinion, the plaintiff had a right to have this parol partition confirmed by a decree vesting in him whatever title the defendant had in the premises."1 In Ohio, it is certain that if a parol partition be consummated by possession and be a fair division of the common property, it will not be disturbed in equity after the lapse of several years, although some of the parties were infants." In Texas, a parol partition is considered as valid, because there is a material difference between the Statute of Frauds of that State and the English statute." "The difference in the two statutes is shown to be this: in our statute a contract for the sale of lands must be in writing; the English statute goes further, and embraces not only a sale of lands, but any interest in or concerning them."3 399. Parol Partition of Trust Estates. Where an estate is so far exempt from the operation of the Statute of Frauds that it may still be created by parol, it may also be divided among the co-owners in the same manner. In considering the effect of a parol partition made between several cestuis que trust, Chief Justice Parker of the Superior Court of New Hampshire expressed his views upon this subject in the following clear and convincing language: "This is a case where the property was held by a trust arising by implication of law, and in its original inception the trust is within the express exception of the statute. No instrument in writing is necessary in order to create the trust estate, or to show the Hazen v. Barnett, 50 Mo. 507. right of the cestui que trust. And if the existence of the trust estate may be shown by parol, because the case is not affected by the statute, and the trust may be enforced without writing because never within the statute, we see no good reason for holding that the estate is within the statute in other respects. So long as it exists as a trust, thus raised by implication of law, it exists with all the incidents attached to such an estate before the statute, because of the exception. And one of these incidents, as we have seen, is that partition may be made by parol. It would present a singular state of the law were we to hold that the creation and continued existence of the estate and title might be shown without any written declaration of the trust, but that a division of the property among those who thus held it must be proved by writing; thus requiring a higher degree of evidence to show the partition of the property than was required to show the existence of the title to it. % 400. Parol Partition-Can it Transfer the Legal Title?"In no case, however, has a verbal partition been held sufficient for any other purpose than to ascertain the limits of the respective possessions; and in a case in New York, where the plaintiff in ejectment undertook to base his title upon a verbal partition, though there had been separate holdings for twenty-five years under it, the Court held that a verbal partition could in no case operate to pass title."" We think the foregoing quotation, if not contradicted, is well calculated to lead to a misapprehension of the law upon this subject. In those decisions which affirm the validity of parol partitions, the whole tenor of the opinion of the Courts, with one or two exceptions, is to the effect that such partitions invest each cotenant with a full perfect legal title to the purparty allotted to him, and of which, by virtue of such allotment, he has taken and held possession. If he is so invested with the legal title, no impediment exists to prevent his maintaining ejectment against any person unlawfully in possession. The case in New York, referred to in the preceding quotation, is that of Jackson v. Vosbrugh, 9 Johns. 270. An inspection of the original report will show how Dow v. Jewell, 18 N. H. 354. 2 Browne on St. of Frauds, sec. 70. wonderfully the case has been misrepresented. In the first place, it was not the plaintiff but the defendant who undertook to avail himself of a parol partition. In the second place, the validity of the partition was denied solely on the ground that the parties never were cotenants of the property in dispute, the Court holding that when one person was owner in severalty, and he, with others, made a parol partition of his property, on the hypothesis that they were tenants in common, such parol partition did not transfer the title from the owner and vest it in one who never had any interest in it. The Court, therefore, instead of holding as represented, held that "where the whole right and title of the party setting up the tenancy in common is denied, and in fact abandoned, the parol partition will not operate to transfer title;" and in what it actually held, the case has since been approved in another State, and is certainly unquestionable as well as unquestioned law. 1 ? 401. The American text-writers have shown a decided preference for the rule sustained by the English authorities, viz., that a parol partition is no longer capable of destroying a cotenancy although fully executed by taking and holding possession under it. In fact, some American writers have attempted to ignore the American decisions dissenting from the English rule. Thus, Mr. Washburn, in his work on real property, declares, in general terms, that "no parol partition can be effectual unless accompanied by deeds from one cotenant to the other, inasmuch as the Statute of Frauds applies to such cases." Mr. Browne, in his Treatise on the Statute of Frauds,' after showing some of the decisions on both sides of this question, announces, as his conclusion, that "the decided weight of authority in the United States seems to favor the English view of this question, and to be opposed to allowing a verbal partition to be effectual even to sever the possession of tenants in common." But it is scarcely possible to consider the decisions cited in preceding sections, without realizing that the authorities are much more evenly divided than Mr. Browne supposes them to be; and 3 Bompart v. Roderman, 24 Mo. 398. 31 Washb. on Real Property, 430. whether we seek to determine the question by numbering the opposing decisions, or by considering the character and respectability of the Courts whence they proceeded, we shall, in either case, be unable to form any decided opinion, and shall be convinced that if the weight of the American decisions is in consonance with those of the English Courts, the preponderance is so slight as to scarcely turn the scale. Where so radical a difference of opinion exists in regard to an important legal proposition, we naturally expect of the disputants a full statement of the reasons upon which their respective conclusions are based. But, in reference to the question we are now considering, it is equally a matter of surprise and of regret that the Judges on both sides have treated the matter as too clear for argument, and have found it more convenient to ignore than to refute. % 402. Enforcing Parol Partition.-But whatever effect may be conceded at law to parol partitions, we think it quite certain that, when executed by taking possession thereunder, they will be recognized and enforced in equity, particularly when such a partition and the possession based upon it have been mutually acquiesced in by the parties for a considerable period. "I do admit a parol agreement of long standing, acknowledged by all the parties to have been the actual agreement, and accordingly put in execution, will be established by this Court, where it appears that the persons who made such agreement had a right to contract, and I will not at fifty-three years' distance; suffer either of the parties to controvert the equality of the partition at the time it was made."1 It is true that in most of the cases in which equity has protected rights based upon parol partitions, possession had been taken and continued under such partition for a long period of time, or one of the parties acting upon his faith in the partition has made valuable improvements upon the purparty allotted to him. But while either of these circumstances might justly be regarded as entitled to great consideration, we conceive that neither is essential to warrant the Ireland v. Rittle, 1 Atk. 542; Whaley v. Dawson, 2 Sch. & Lef. 367; Kennedy v. Kennedy, 43 Pa. St. 417; Massey u. McIlwain, 2 Hill Ch. 424; Pope v. Henry, 24 Vt. interposition of the Court, and that a court of equity will compel the specific performance of a parol partition, as of any other parol contract relating to lands, whenever it has been carried into execution by the parties.' "While the legal title might not, perhaps, be considered as passing by a parol partition, unless after a possession sufficiently long to justify the presumption of a deed, yet the parol partition followed by a several possession, would leave each cotenant seized of the legal title to one-half of his allotment and the equitable title to the other half, and by a bill in chancery he could compel from his cotenant a conveyance of the legal title according to the terms of the partition."2 2403. By Grantee of Interest to be Located.-Where a specific quantity of land is conveyed to be located at the election of the grantee within the limits of a larger tract of which the lands granted are a part, the grantee, though tenant in common with his grantor until the selection is made, becomes, as soon as he locates his tract, owner thereof in severalty. "This location, in conformity with the provisions of the deed itself, renders that certain which was before uncertain," and gives a good legal title to the part selected." 404. Parol partitions, according to the Mexican and Spanish law, were valid. But "in order to uphold a partition under the Spanish law, as well as under the common law, it must satisfactorily appear that there was not only an agreement to make the partition, but that the same was fully executed and followed by a several possession by either the parties themselves or their grantees. % 405. Partition of Lands of Proprietaries. The proprietaries which existed at an early day in the New England States, and under which large tracts of land were acquired and held, in undivided interests, by grants from the State, seem to have exercised many of the powers now exercised only by corporate bodies, and, in the general management Goodhue r. Barnwell, Rice Eq. 236; Hazen v. Burnett, 50 Mo. 507. *Tomlin c. Hilyard, 43 Ill. 302. Corbin v. Jackson, 14 Wend. 625; Jackson v. Livingston, 7 Ib. 136. Long v. Dollarhide, 24 Cal. 222; Elias v. Verdugo, 27 Cal. 425; Lynch v. Baxter, 4 Tex. 431. |