Buzzell v. Gallagher , 28 Wis. 678 ( 1871 )

Lyon, J.

In March, 1863, the plaintiff, who was then the owner of the eighty acres of land described in the complaint, conveyed the same to his two sons, Philander and Thomas. The sons had some negotiation or conversation relative to a partition of the land, and there seems to have been an understanding between them that if they made a partition of it, Philander should take the.north half, and Thomas the south half of the eighty. Thomas died in October, 1864, intestate and unmarried, and the plaintiff is his heir-at-law. The sons occupied the premises in common while Thomas lived, and Philander and the plaintiff occupied them in the same manner after the death of Thomas, for four or five years.

In April, 1868, the plaintiff conveyed, by deed of warranty, to one William B. Hall, fifteen acres of land described by metes and bounds, being part of the south half of said eighty acre lot. Philander .did not join in such deed. In June, 1869, Philander conveyed the whole of the north half of the eighty to the defendant Mrs. Gallagher, -tor the consideration, as expressed in the conveyance, of five hundred dollars. The plaintiff had knowledge before such conveyance was executed, that Philander was about to convey the whole of the north half of the eighty, in severalty, to Mrs. Gallagher, and made no objection thereto.

Up to that time the plaintiff had constantly resided in a house on the land so conveyed to Mrs. Gallagher, but during the fall of 1869 he removed therefrom to a house on the south half of the lot, and since that time has had no possession of the north half of the eighty, or of any portion thereof.

In August, 1869, Philander conveyed to plaintiff all of his interest in the south half of the eighty, for a nominal consideration.

Each of the foregoing conveyances was executed by the wife of the grantor, and all of them are duly recorded.

This action is to recover possession of an undivided half of tbe premises conveyed by Philander to Mrs. Gallagher. On the trial, the court refused to direct the jury to return a verdict for the defendants, and the jury found for the plaintiff. Judgment was afterwards entered upon the verdict, that the plaintiff recover of the defendants the premises described in the complaint; from which judgment the defendants have taken an appeal. The defendants were in the exclusive possession of such premises at the time the action was commenced.

The question to be determined is, whether the foregoing facts constitute a valid and binding partition of the eighty acre lot, sufficient to entitle Mrs. Gallagher to hold the possesssion of the north half thereof. It has been held in New York, in numerous cases, that a parol partition of land carried into effect by possession taken by each party of his respective share according to the partition, is valid and binding upon the parties, and sufficient to protect the several possession by each, of his share thereof. See Wood v. Fleet. 36 N. Y., 499, and cases cited.

The same principle was laid down by this court in Eaton v. Tallmadge, 24 Wis., 217. And although cases can be found which deny the binding force of a parol partition under any circumstances, yet the law is settled the other way in this state, and is thus settled, it is believed, upon the better and sounder principle,, as well as upon the weight of authority. None of these cases decide that a parol partition followed by possession in severalty of the former tenants in common in accordance therewith, changes the condition of the legal title to the premises. That remains the same as before. But such partition leaves each co-tenant seized of the legal title of one-half of his allotment and the equitable title to the other half, with the right to the possession of the whole of his allotment in severalty-And such co-tenant could doubtless successfully invoke the aid of a court of equity to compel the other co-tenant to convey to him the legal title of that half of his allotment to which he acquired the equitable title by virtue of the partition. Tomlin v. Hilyard, 43 Ill., 300.

In tMs case there is no direct evidence that the plaintiff and Ms son Philander expressly agreed upon a division and partition of the eighty acre lot, but there is an abundance of undisputed evidence wMch proves that they did in fact make a partition of the lot, and that they and their respective grantees occupied the portions allotted to each of them respectively, in severalty.

The facts above stated, and more especially the conveyance by the plaintiff to Hall of a part of the south half of the eighty; the conveyance by PMlander to Mrs. Gallagher of the north • half thereof, with the knowledge and implied consent of the plaintiff; the surrendering of the possession thereof by the plaintiff to Mrs. Gallagher ; the acceptance by the plaintiff of' a release1 of Philander’s interest in the south half of the eighty; and the plaintiff’s possession of that half thereof — demonstrate beyond all question that a valid partition of the land has been made, and that Mrs. Gallagher is entitled to the exclusive possession of the premises sought to be recovered in tMs action. Had she interposed an equitable counterclaim to that effect, it would have been the duty of the circuit court to adjudge the legal title in her, or to compel the plaintiff to release the same to her. But under the present answer, which is simply the general denial, the foregoing facts are only available as a defense. They are, however, a perfect defense to the action, and the court should have so instructed the jury.

By the Court. — The judgment of the circuit court is reversed, and a new trial ordered.