Wildey v. Bonney's Lessee , 31 Miss. 644 ( 1856 )

Handy, J.,

delivered the opinion of the court.

This case has been in this court on two previous occasions, and it now depends upon questions different from those formerly presented. The attitude in which it was last presented appears by the report of it in 28 Miss. Rep. 710.

When the case was last tried in the court below, after the plaintiff’s lessor had offered, in support of his title, the evidence adduced on the trial, as stated in the last report of the case, the defendant offered in evidence, First, the report of the commissioners appointed by the Probate Court to make partition of the lands of William Hall, made to and confirmed by the Probate Court; by which it appeared, among other things, that “Archibald C. Hall,” (one of the heirs,) “ agreed to take for his own share and Mrs. Pierce’s,” (another of the heirs,) “ lots number two and five, by being paid two hundred and fifty dollars,” and that the commissioners made the allotment accordingly. This evidence was objected to by the plaintiff, and the objection was sustained, on the ground that the partition between A. C. Hall and Mrs. Pierce was void, for uncertainty.

The defendant then offered in evidence, in connexion with the above report, and to remove its ambiguity, a written agreement, signed and sealed by all the heirs of William Hall, except Mrs. Pierce, ratifying the allotment made by the commissioners, and stating that Archibald C. Hall “took the ridge farm as his share;” and also offered the deposition of Robert Mabin, one of the heirs, to prove that the land in controversy is lot number two, as divided by the commissioners, and that it lies in the Yazoo valley, and that lot number five, referred to in their report, lies in the hills; that the two hundred and fifty dollars were awarded- by the commissioners, in order to make lot number five equal in value to lot number two, and the other lots, that sum being paid to A. C. Hall for that purpose, as he had taken lot number five in the partition, and has ever since occupied it as his home, and that Mrs. Pierce took lot number two; that Mrs. Pierce was then married, and her husband, Marcus Pierce, died in 1844. This testimony was objected to, as. incompetent for the purpose for which it was offered, and the objection was sustained.

The defendant then offered all the above-stated evidence, for the purpose of showing that there had been a parol partition of the lands of William Hall, including the land in controversy, among his heirs, and also at the same time offered legal evidence for the same purpose, to prove, that, after that partition, the several heirs took possession of the portions allotted to them in the commissioners’ report, and have held possession thereof ever since, except that after the partition A. 0. Hall, besides claiming and occupying lot number five, held possession of lot number two, under a deed from Marcus Pierce, dated in June, 1841, conveying to A. 0. Hall, all his interest in all the lands of William Hall, during the life of Pierce, and in right of his wife, and that he so held possession of lot number two, until Pierce’s death, in 1844; that Mrs. Pierce was never in actual possession of lot number two, but that she sold and conveyed it to two of the other heirs, after her husband’s death.

To all this evidence the plaintiff objected, and the objection was sustained, and the defendant excepted to these several rulings of the court. And the verdict and judgment being for the plaintiff, the defendant brings the case here by writ of error.

The merits of the case depend upon the question, whether the evidence offered in behalf of the defendant below was competent and sufficient to show such a partition of the lots numbered two and five, as would divest the title of Archibald C. Hall to the former of these parcels of land, being the one in controversy in this suit. And in determining this question, we do not consider it necessary to decide whether each part of the evidence, as it was offered, was competent for the purpose for which it was stated to be adduced. For if the whole of it together was competent to show a divestiture of the title of Acrhibald C. Hall, under whom the plaintiff’s lessor claimed, the several parts of it were necessarily admissible. We will, therefore, consider whether the whole evidence, as offered, was competent to show a valid partition of the land.

It was held in the previous decision, that the partition of the two lots of land in question, between A. C. Hall and Mrs. Pierce, was void, for uncertainty. It was not intended to hold that this partition was void otherwise than as a judicial proceeding; for the matter was then presented for consideration only as a judicial partition, and not in the view in which it is now presented.

The report and proceedings of the commissioners were here offered, as connected with the subsequent agreement made between the parties, and their conduct in relation to the land, showing that a parol partition, was made between them. The report and plat of the lands, though not valid as a judicial partition, were necessary to explain the acts of the parties with reference to them, and if those proceedings were sanctioned by the parties interested, and they afterwards made them the basis upon which they divided the lands among themselves, such ratification would render these proceedings valid as a part of the agreement for partition, and they would be competent evidence, as private writings, forming part of the res gestee.

The subsequent acts of the parties tend clearly to show that the partition intended to be made by the commissioners, was carried out by the parties. The written agreement made by them in December, 1848, has direct reference to it, and shows what portion of the land was agreed to be allotted to A. C. Hall; and the testimony of Mabin shows still more explicitly, that the partition, a3 made by the commissioners, was adopted by the heirs, and that all the uncertainty in the report was cured by the private agreement of the parties, Mrs. Pierce taking lot number two, as described in the plat and report, and A. 0. Hall taking lot number five, and each party taking possession of his own portion. And the additional evidence offered by the defendant corroborates the same view.

It is therefore plain, that the parties treated the partition intended to be made by the commissioners as valid, and that they cured any insufficiency in it by their own private action and agreement; and that this was clearly established by the evidence offered in behalf of the defendant.

The only question then, upon which the competency of this evidence depends, is, whether it is competent to show.a partition by parol, between coparceners or tenants in common. And there can be no doubt but that such an agreement, when carried out by the parties taking possession in severalty, is valid, and effectual to conclude the rights of the others against the respective parties so holding in severalty. Corbin v. Jackson, 14 Wend. 619; Jackson v. Harder, 4 Johns. R. 202; Piatt v. Hubbell, 5 Ohio Rep. 243; Slice v. Derrick, 2 Richardson, 627.

Treating the case, therefore, as one of parol partition, with possession in severalty accompanying and following it, it is clear that all the evidence offered together by the defendant, to show such a partition, was competent, and should have been admitted.

But the written agreement of December, 1843, signed and sealed by A. C. Hall, taken in connection with the commissioners’ report and plat of the land, as a mere written memorandum, shows substantially a partition by deed. That agreement, it is true, is executory ; but the evidence subsequently offered shows that the terms therein stated were complied with; and it was clearly competent to show such compliance by parol evidence. This agreement and the action of the parties under it, would estop A. C. Hall from setting up any claim to other parts of the land in opposition to his election, especially when possession in severalty had passed in conformity to it, to the parties respectively, and had been continued and acquiesced in for a number of years; and any one claiming under A. C. Hall would also be estopped.

It-is manifest, therefore, that the several parts of the evidence offered in behalf of the defendant, were erroneously ruled out.

The judgment is reversed, and the cause remanded for a new trial.