Masterson v. Finnigan , 2 R.I. 316 ( 1852 )

The Court, without deciding whether the writing endorsed on plaintiff’s deed was valid as a deed of partition, were of the opinion that it was good as an agreement, and that in equity an agreement for a partition in writing would have the same effect as an actual partition; that the fact, that the partition did not embrace the whole of the land in which the plaintiff was interested and was-unfavorable for her, furnished no ground for the interposition of the Court, if the agreement was made without fraud on the part of the defendant; that there was no proof in the case to sustain the charge of fraud against the defendant, and that, therefore, if the rule laid down in the Mount Vernon Bank v. Stone were to be rigidly enforced the bill should be dismissed ; yet, inasmuch as the plaintiff did have a claim for the partition of so much of the land in which she was interested under the deed from the defendant, as is not embraced in the agreement endorsed on said deed, instead of dismissing the bill, they would retain it to make partition of this land, and as preliminary thereto would send the case to a master to report a proper partition, but at the same time charge the plaintiff with all the costs of the defendant up to the rendering of the decree sending the case to the master.