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.
4 Porter v. Perkins, 5 Mass. 233; Porter v. Hill, 9 Mass. 34; Watson v. Kelly, 1 Harr. (N. J.) 517; Woodhull v. Longstreet, 3 Harr. (X. J.) 405; Richman v. Baldwin, 1 Zab. (N. J.) 395; Lloyd v. Conover, 1 Dutch. (N. J.) 47; Stuart v. Baker, 17 Texas 417; Goodhue v. Barnwell, Rice, (S. C.) Eq. 198; Chenery v. Dole, 39 Me. 162; Ballou v. Hale, 47 N. H. 347. See Hill v. Meyers, 43 Pa St. 395. Where each co-tenant had conveyed away a portion of the estate equal to the amount of his share, it was held in Eaton v. Tallmadge, 24 Wisc. 217, that the two conveyances amounted to a valid partition, but this was denied, and semble rightly, in Duncan v. Sylvester, 16 Me. 388; White v. O'Bannon, 86 Ky. 93.
§ 72. It is worthy of remark, that in all the English cases which have been referred to, the separate possession had existed for more than twenty years after the verbal partition had been made; nor does the question of the effect at law of such possession, continued for a less time, appear to have arisen. In the case of Woodhull v. Longstreet, just quoted, where it had been continued five or six years only, and it was decided that it had no effect to sever the possession, Hornblower, C. J., speaking of the leading New York case, Jackson v. Bradt, says: "If the court intended to say that a parol partition, followed by twenty years' possession in conformity with it, will be sufficient, I shall not differ with them." And there seems to be no reason why the presumption of a valid grant after the lapse of twenty years should not prevail in such cases, as in others of adverse possession for that length of time.1 But it is held that where a parol partition has been made between tenants in common, and possession held in severalty according to it for a considerable period, though for less than twenty years, upon a suit in equity afterwards brought to compel a partition, the division thus made and acted on by the parties will be considered fair and equal.2
1 Woodhull v. Longstreet, 3 Harr. 405.
§ 73. It may be remarked, in regard to partitions between joint tenants, that as the reasoning adopted in cases of tenants in common, namely, that the only privity by which they are united is privity of possession, and that their several possessions may be well ascertained without writing, is inapplicable, the law remains the same as before the statute, and such a partition, to be valid, must be by deed.3
§ 74. In courts of equity, verbal partitions are often treated as contracts, which, when followed by possession, will be specifically enforced in like manner as other contracts for land, upon the equitable ground of part-performance. Such cases seem to belong entirely, therefore, to a subsequent part of this treatise, where the principles upon which courts of equity proceed in cases of part-performance of contracts affected by the Statute of Frauds are considered. It may be mentioned that this appears to be the proper view in which to regard the numerous Pennsylvania decisions on this subject; the custom of the law courts of that State being to administer equity through the forms of law.1
1 Marcy v. Marcy, 6 Met. (Mass.) 360; Dall v. Brown, 5 Cush. (Mass.) 289; Duncan v. Sylvester, 16 Me. 388; Towusend v. Downer, 32 Vt. 183.
2 Priugle v. Sturgeon, Litt. (Ky.) Sel. Cas. 112; Polhemus v. Hodson, 19 N. J. Eq. 63; Moore v. Kerr, 46 Ind. 468; Hazen v. Barnett, 50 Mo. 506. Compare Wood v. Fleet, 36 N. Y. 499. Whatever latitude may be allowed in effecting a partition between tenants in common, a mere sale or contract of sale by one of them to the other of part or the whole of his property, must be in writing; for the Statute of Frauds applies to any contract for a transfer of an interest in land, between whatsoever descriptions of parties it is made. Galbreath v. Galbreath, 5 Watts (Pa.) 146.
3 4 Greenl. Cruise, 77; Roberts on Frauds, 283-285; Porter v. Hill, 9 Mass. 34. And see as to partition by tenants in mortgage, Perkins v. Pitts, 11 Mass. 125. In Haughabaugh v. Honald, 1 Tread. (S. C.) 90, it was said that a joint tenancy might be severed like a tenancy in common; but the case was decided upon other points. Where an estate is held by an equitable title, it is said that partition may be made by parol. Maul v. Rider, 51 Pa. St. 377; Dow v. Jewell, 18 N. H. 340. But compare § 229, post.
§ 74 a. The proprietors of common and undivided lands, in the New England States, holding their lands by a grant from the State, have been accustomed, it is said, from very early times, to make partition of their lands by vote, without deed, and these parol partitions have always been sustained by the courts, an exception to the strict rule of law being made in their favor, to avoid the mischief and public inconvenience which would result if the custom that had so long prevailed should be declared contrary to the law.2 In the cases cited below, attempts have sometimes been made to find some other explanation, but the doctrine has generally been regarded as exceptional, and supported only on the grounds of custom and expediency.3
1 McMahan v. McMahan, 13 Pa. St. 376; Ebert v. Wood, 1 Binn. 216; Galbreath v. Galbreath, 5 Watts, 146; Calhoun v. Hays, 8 Watts & S. 127; Rhodes v. Frick, 6 Watts, 315; Rhine v. Robinson, 27 Pa. St. 30. See also Weed v. Terry, 2 Doug. (Mich.) 344; Cummins v. Nutt, Wright (Ohio) 713; Goodhue v. Barnwell, Rice (S. C.) Eq. 198; Young v. Frost, 1 Md. 377; Sweeny v. Miller, 34 Me. 388; Buzzell v. Gallagher, 28 Wisc. 678; Bruce v. Osgood, 113 Ind. 360.
2 Coburn v. Ellenwood, 4 N. H. 99.
3 Codman v. Winslow, 10 Mass. 146; Coburn v. Ellenwood, 4 N. H. 99; Corbett v. Norcross, 35 N. H. 99; Thorndike v. Barrett, 3 Greenl. (Me.) 380; Cary v. Whitney, 48 Me. 526; Abbot v. Mills, 3 Vt. 521; Stiles v, Curtis, 4 Day (Conn.) 328. In Angell & Ames, Corporations, Chap. VI., these proprietorships are treated as quasi corporations, and receive a full and careful discussion.