This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
§ 67. The most common of those cases in which the verbal agreements of the parties, attended by certain acts in pais, are sometimes said to transfer the title to land, are verbal partitions and verbal exchanges, each followed by possession accordingly. Verbal licenses to be exercised upon land, which might, in one view, belong to this division of the subject, have already been discussed under the head of leases.
§ 68. At common law, partitions might be made between joint tenants by deed only, between tenants in common by agreement to make no claim under a mortgage, though the debt remain, cannot be enforced. Parker v. Barker, 2 Met. (Mass.) 423; Hunt v. Maynard, 6 Pick. (Mass.) 489.
1 Gray v. Jenks, 3 Mas. (C. C.) 520; 4 Kent Com. 193-196, 4th ed.
2 2 Greenl. Cruise, 91.
3 Roberts on Frauds, 277.
1 Roberts on Frauds, 285; 2 BI. Com. 323; Allnatton Partitions, 130; Johnson v. Wilson, Willes. 248; Ireland v. Rittle, 1 Atk. 541; Whaley v. Dawson, 2 Schoales & L. 367.
2 Jackson v. Bradt, 2 Caines. 169. 3 Jackson v. Harder, 4 Johns. 202.
Vosburgh, the defendant in ejectment gave evidence tending to show parol partition and occupation in accordance with it, but offered no proof of a tenancy in common among those whom he alleged to have made it. The plaintiff alleged that the title to the whole had vested in his grantor, as heir-at-law. The plaintiff had judgment, and the court, on appeal, affirmed it, holding that enough had not been proved by the defendant to devest the plaintiff of his title as claimed under the heir-at-law.1 In Ryerss v. Wheeler, it was held, that ejectment could be maintained against a stranger, upon proof of partition, although it did not appear that all the tenants in common had acquiesced in it.2 In Wood v. Fleet, said in the opinion of the Court of Appeals to be an action brought to "affect a division or partition of real estate," a parol partition had been made by two brothers, tenants in common, by which the referee found the property to have been fairly divided. One of them had made a quitclaim deed, and the possession had continued nearly twenty years. Under these circumstances the court declined to set the partition aside at the suit of the sister of the co-tenants, who before the partition had conveyed to them all her interest in the property previously held in common by the three.3
§ 69. In Mississippi, where a parol partition was sought to be sustained by a bill in equity for specific performance, it was held that such an agreement was "not within the letter or spirit of the Mississippi statute, which only affects contracts for the sale of lands." 4 The same decision was made in Texas, under a similar provision of the statute of that State,6 also in Tennessee.6 In North Carolina, in an action of trespass brought by one co-tenant against the other, the plaintiff proved the co-tenancy and parol partition, and rested. Defendant then moved for a nonsuit, which was granted, and confirmed on appeal.1 But in a similar action in Illinois, where the plaintiff offered evidence of a parol partition, and it was excluded, this ruling was held erroneous, on appeal.2
1 Jackson v. Vosburgh, 9 Johns. 270.
2 Ryerss v. Wheeler, 25 Wend 434. 3 Wood v. Fleet, 36 N. Y. 499.
4 Natchez v. Vandervelde, 31 Miss. 706.
5 Stuart v. Baker, 17 Texas, 417; Aycock v. Kimbrough, 71 Texas, 330; Martin v. Harris, 26 S. W. Rep. (Tex.) 91. 6 Meacham v. Meacham, 91 Tenn. 532.
§ 70. An oral agreement for partition, followed by entry and occupation, which might be enforced in equity by a bill for specific performance of the express or implied agreement of either party to convey his interest in the portion assigned to the other, has been held a sufficient defence to an action of ejectment brought by one partitioner against the other's grantee, to recover an undivided half of the premises thus granted.8
§ 71. The decisions in other States seem to favor the English view of this question, and to be opposed to allowing a verbal partition to be effectual, even to sever the possessions of tenants in common.4 In New Jersey, particularly, the subject has received a very full and able examination, and the reasoning of the court is in the highest degree satisfactory. Hornblower, C. J., in delivering the judgment of the Supreme Court of that State against the validity of such a partition, said: "If the partition . . . was valid in law, when did it become so? As soon as it was verbally agreed to, or not until they severally took possession? What, then, shall amount to such possession as to bind the parties? How long must it continue? If for any period less than twenty years, why not ten or five years, or one year or a month, or day? Again, suppose two out of three, or nine out of ten co-tenants enter upon their respective shares, take possession, and make improvements in pursuance of a parol partition; or suppose the lands are not of such a character as to be susceptible of an actual inclosure or occupation; what is to be done in such cases? ... It is a mistake, in my opinion, to suppose that tenants in common have not such a community of estate as requires under the interest a deed or writing to put an end to. It is true they have only a privity of possession, but that privity gives each tenant in common a freehold in every part of the undivided tract, a right of possession in every square foot of it. Such a right is an interest in land that cannot be transferred, by the very terms of the statute, but by writing." 1
1 McPherson v. Seguine, 3 Dev. Law, 153, citing Anders v. Anders, 2 Dev. Law, 529; Medlin v. Steele, 75 N. C. 154.
2 Grimes v. Butts, 65 111. 347.
3 Buzzell v. Gallagher, 28 Wisc. 678. See Tomlin v. Hilyard, 43 III. 300. But where a creditor, having a judgment against one co-tenant, was about to enforce it upon the land held in common, the other co-tenant brought a bill in equity to stay execution upon a part of the land, which he alleged had been set aside to him by an oral partition, after which quit-claim deeds were made, but the deed to him was not recorded until after the judgment debt was incurred. The bill was dismissed on the ground of the complainant's laches in failing to record his deed. Manly v. Pettee, 38 III. 128; Tate v. Foshee, 117 Ind. 322; McKnight v. Bell, 135 Pa. St. 358; Wolf v. Wolf, 158 Pa. St. 621; Mellon v. Read, 114 Pa. St. 647.