Mellon v. Reed

Mr. Justice Clark

delivered the opinion of the court

It is conceded that the land in dispute is part of a larger tract, of which Lewellen Howell, Sr., in the year 1823, died sole seized; both parties claim title mediately or immediately from him. By his last will and testament he devised the land to the use of his wife, Mary, until James his youngest son should arrive at the age of twenty-one years, at which time he directed his executors to sell it and divide the proceeds, one third to be at interest for the use of his wife, and the remaining two thirds to be equally divided amongst his heirs, consisting of five sons and three daughters. The provision for his children was a bequest of the proceeds of the sale of the land 'by his executors, and not a devise of the land itself, but it was the right of the parties interested in the fund at their election to accept the land unconverted, and this, it is not denied, was done, and thereby they become tenants in common of the lands, subject to the estate and right of the widow therein.

The widow was without condition entitled to the whole of the land during the minority of her son James, and after that, at her option, upon certain conditions, during widowhood, at, or at any time after, the arrival at age of James Howell, it was undoubtedly competent for the. heirs, with the widow’s consent, to make a partition of the lands according to the respective rights of the parties in interest under the will. It was in the power of any of the parties under such circumstances, by an application to the Orphans’ Court, to have compelled a partition, and what was compellable by law might be effected by the agreement of the parties, and without recourse to the law. Nor was it essential that the partition should be evidenced by deed or even by writing. A partition rvhich merely severs the relation existing between tenants in common in the undivided whole, and vests title to a correspondent part in severalty, is not such a sale or transfer of title as will be affected by the Statute of Frauds; and, in analogy to the proceedings, both in the Common Pleas and Orphans’ Court, it is not necessary that a certain portion or allotment of the land, in kind, should be given to each of the tenants in severalty, if it appears that the partition is fully executed, and that each has accepted and received his purpart, either in kind, or by payment in money, or otherwise : Calhoun v. Hays, 8 W. & S., 132.

But it is not shown in the case at bar that James Howell took any part in the partition; indeed it does not certainly appe'ar that he had arrived at the age of twenty-one, and was sui juris ; it does appear that he was present, but no provision is shown to have been made for him; he received no purpart of the land, no equivalent in money, or otherwise. Even in the ordinary proceedings for partition under the statute, after confirmation by the court and allotment of the several purparts, the title of the several tenants in common remains, until their respective interests are properly secured: Bavington v. Clark, 2 P. & W., 115. How then could James Howell be supposed to have parted with his title to the undivided one eighth part of the land, as one of the heirs of Lewellen Howell, Sr., deceased, when he neither received any part of the estate nor the promise of anything in lieu of it. Itis true there is no proof that James, during the lifetime of his mother, made any claim to the land, but it is equally true, that during the life of his mother he had no claim which he could make, and within three years after her death he brought his ejectment against John for his interest in the part of which Lewellen, Jr., died seized. His interest in this part of the tract was different .from his interest in the other part, for Lewellen, the younger, had in the meantime died, and by his will devised to James an interest in the former, which Lewellen, Jr., doubtless claimed as his own under the partition. The ejectment by James and Andrew, jointly to recover what interest either of them might have in this part of the land,, was in no sense inconsistent with a claim by either of them in the other part. As to James’ interest in his father’s estate the partition was as if it had never been made; James was therefoie entitled to one eighth of the entire tract.

Lewellen, Jr., however, as, between himself and those by whom the partition was in fact made, was bound by it, and the devise by Lewellen to James and Andrew for life was made of this part of the land upon that condition of the title. But if James claimed the undivided one eighth of the whole tract, as his agreement with his attornej’s, Robert Wood & Son, plainly indicated that he did, his claim under Lewellen’s will, in that part of the land, would necessarily be for such part thereof only as was proportionate to Lewellen’s one eighth-part of the whole ; for he would not be permitted to repudiate the effect of the partition in the one case to avail himself of the benefit of it in the other; if this could be done he would recover more than his share of the land. In the absence then of any evidence which could bind James to the partition, it follows, as a matter of law, that he was entitled to one eighth interest in his father’s tract absolutely, and the equivalent of one half of one eighth of the whole, in the Lewellen tract for life, and this, within a very small fraction of an acre, was the amount of land which was conceded to him, the amount which he actually recovered, and which was set apart to him in severalty, in the ejectment — the lands now in dispute.

It may be that those entitled in remainder under the will of Lewellen the younger were not concluded by the act of the life tenant, and were therefore not bound by the judgment in ejectment, but they have by the most unequivocal acts accepted it, and this suit is brought in plain recognition of it..

It is of little consequence that the land was, in the precipe, described or distinguished as the same land of which Lewellen, Jr., died seized; he was in the sole possession at the time of his death, and was, in fact, seized of an undivided interest therein. It is true also that by the verdict he was held for payment of the legacies declared in Lewellen’s will, but he was also obliged to release all his interest in the remainder of the original tract, owned by his father.

There was no evidence whatever, prior to the filing of the formal release under the verdict, of any extinguishment of James’ title in his father’s farm, or to justify the submission of the question whether or not the land in dispute is the same as James Howell took under the will of his brother, Lewellen Howell, Jr., deceased. The effect which was given to the oral partition, as against James Howell, was the fundamental error of the court below in the trial of the cause, and upon this the judgment must be reversed.

The remaining assignments relate chiefly to mistaken statements of fact, bearing upon the question submitted. In the view we have taken of the case, these become unimportant, and need not be considered at length. The first and second assignments of error are, we think, without merit. The testimony of Peter Murray was irrelevant and was properly excluded.

Where the owner of a mortgage, or an undivided interest in land, is at the same time the owner in fee of another undivided interest, in the same land, we think a possession of the land, wholly consistent with his right as a tenant in common, cannot in an ejectment be considered the possession of a mortgagee, unless the fact be shown that the possession had been previously acquired, and was afterwards retained, as such. Besides, it is said that the mortgage was in the name of Thomas A. Mellon, who is not a party to this suit; as the instrument is not printed, and we find no evidence in relation to it, we are unable to see how the question, supposed to be raised under the second assignment, has any connection with the cause.

The judgment is reversed, and a venire, facias cle novo awarded.