Reed v. Mathewson , 146 Ga. 819 ( 1917 )

Evans, P. J.

(After stating the foregoing facts.) The law respecting- contractual partition of land is so aptly stated in Smith v. Smith, 133 Ga. 170 (65 S. E. 414), that we take the liberty of repeating it: “An agreed partition of land is such a contract as is required to be in writing, under the statute of frauds. A mere parol partition, without more, will not suffice. In some States it is held that a parol partition, though consummated by possession under it and acquiescence in such possession, will not vest the legal title in severalty, unless the possession be continued for a sufficient length of time' to raise the bar of the statute of limitations, or confer title by prescription. In equity the rule is generally recognized that a parol partition, followed by exclusive possession in severalty and the exercise of ownership by the parties respectively for a considerable length of time, with the acquiescence of all concerned, will give an equitable title and right of exclusive possession to each cotenant. In this State, where the distinction between proceedings in law and equity is not so closely observed as in some others, it has been held, that, ‘Where tenants in common agree by parol upon a partition, defining in the agreement the boundaries of the part assigned to each in severalty, and each' enters into possession, thus executing the agreement, the partition clothes each with a perfect equity, and is thus the equivalent of legal title Adams v. Spivey, 94 Ga. 676 (20 S. E. 422); Welchel v. Thompson, 39 Ga. 559 (99 Am. D. 470); Blacker v. Dunlop, 93 Ga. 819 (21 S. E. 135); Ralph v. Ward, 109 Ga. 363 (34 S. E. 610).” None of the cited cases involved specific performance of a parol contract of partition, and in all of them the proof of actual possession in execution of the parol contract for partition was clear and definite. The statute of frauds is applicable to a contract for the partition of land; and when such a contract rests in parol, there must be part performance to take it out of the statute. When cotenants make a parol partition of land among themselves, and each one takes exclusive possession of his own share thus al-.lotted, such possession is deemed part performance of the contract, and a court of equity will confirm and enforce the division by decree. Pomeroy on Specific Performance, § 121. “Acts to be deemed a part performance should be so clear, certain, and definite in their object and design, as to refer exclusively to an agreement completed of which they were a part execution.” Hawkins v. Holmes, 1 P. W. 770. As the absence of a writing required by the statute of frauds-is in some measure supplied by the physical fact of possession,- that fact must he clearly alleged, and proved with certainty, before specific performance will be decreed of a parol contract relating to land. It is the physical fact of exclusive possession of the allotted parts in severalty which constitutes the part performance. The petition alleges that, after the partition by the surveyor, each cotenant took possession of his respective portion allotted to him; but in the next paragraph it is stated that the partition was repudiated “a few days subsequent to the partition and division of said land,” when the defendant refused to. execute deeds confirmatory of the partition. The allegation of prompt disavowal of the division by the defendant is to be taken in connection with the allegation that the cotenants entered into pos-. session of their respective allotments. When thus considered, the; allegation of possession is insufficient as a positive statement of fact that the cotenants took possession of the portions respectively allotted to them, in execution of the parol partition, as mutual deeds were contemplated to execute the partition. The allegation respecting improvements made upon the land was eliminated when the court sustained the special demurrer and the plaintiff refused to amend. The petition is defective as one for specific performance of a parol partition of land, because the possession of the several cotenants as to the lots assigned to them is not sufficiently alleged to be of that exclusive character demanding a conclusion that the parties took possession of their respective allotments with intent to give effect to the alleged parol division.

Judgment affirmed.

All the Justices concur.