This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Joint tenants, tenants in common, and coparceners may make partition by agreement among themselves, this involving merely the transfer to each cotenant by the other cotenants of a certain portion, designated by metes and bounds, of the whole property.
According to the English authorities, and also the decisions in some states, a partition by agreement must, to be valid under the Statute of Frauds, be in writing.29 In perhaps a majority of the states, however, a parol partition is upheld when followed by possession by the various tenants of the portions allotted to them, -a view which is based on different grounds by different courts. Thus it is stated that such a partition is valid in the case of a tenancy in common because it
R. A. 467, 13 Am. St. Rep. 169, 22 Pac. 261; McCormick v. Marcy, 165 Cal. 386, 132 Pac. 449; Robinson v. Roberts, 31 Conn. 145; Eagle Brewing Co. v. Netzel, 159 111. App. 375, (recovery by lessee of co-owner); King v. Bullock, 9 Dana (Ky.) 41; Sharon v. Davidson, 4 Nev. 416; Bergere v. Chaves, 14 N. M. 352, 51 L. R. A. (N. S.) 50, 93 Pac. 762; Taylor v. Meadows, 169 N. C. 124, 85 S. E. 1; Brady v. Kreuger, 8 S. D. 464, 59 Am. St. Rep. 771, 66 N. W. 1083; Sowers v. Peterson, 59 Tex. 216; Nona Mills Co. v. Jackson, - Tex. Civ. App. -, 159 S. W. 932; Robinson v. Sberwin. 36 Vt. 69; Allen v. Higgins, 9 Wash. 446, 43 Am. St. Rep. 847, 37 Pac. 671. So in the case of a tenancy by entireties. Frost v. Frost, 200 Mo. 474, 98 S W. 527.
28. King v. Hyatt, 51 Kan. 504, 37 Am. St. Rep. 304, 32 Pac. 1105; Dewey v. Brown, 2 Pick. (Mass.) 387; Butrick v. Tilton, 141 Mass. 93, 6 N. E. 563; Gray v. Givens, 26 Mo. 291; Baber v. Henderson, 156 Mo. 566, 79 Am. St. Rep. 540. 57 S. W. 719; Johnson v. Hardy, 43 Neb. 368, 47 Am. St. Rep. 765, 61 N. W. 624; Jackson v. Van Bergen, 1 Johns. Cas. (N. Y.) 101; Mobley v. Bruner, 59 Pa. St. 483, 98 Am. Dec. 360; Marshall v. Palmer, 91 Va. 344, 50 Am. St. Rep. 838, 21 S. E. 672. See editorial note 11 Columbia Law Rev. at p. 579.
29. Browne, Statute of Frauds, Sec. 68; Johnson v. Wilson, Willes, 248; Porter v. Hill, 9 Mass. 34, 6 Am. Dec. 22; Woodhull v. Long-street, 18 N. J. Law, 414; Duncan v. Sylvester, 16 Me. 390; Ballou involves merely a severance of the possession between the various owners, and not a transfer of title, as this is already severed.30 Sometimes it is staled that a partition will be presumed from the exclusive possession by one tenant of a part of the premises for a considerable length of time.31 Occasionally, the state Statute of Frauds, applying in terms only to a sale of lands, was held not to include a partition.32 And sometimes the theory appears to be that one taking part in such a parol partition is estopped to deny its validity as against one who has received his share and erected in provements thereon.33 A parol partition, followed by v. Hale, 47 N. H. 347; Dow v. Jewell, 18 N. H. 340; Williamson v. Wayland Oil & Gas Co., 79 W. Va. 754, 92 S. E. 424.
30. Shepard v. Rinks, 78 111. 188; Hauk v. McComas, 98 Ind. 4S0; City of Natchez v. Vander-welde, 31 Miss. 70G; Jackson v. Bradt, 2 Caines (N. Y.) 169; Wood v. Fleet, 36 N. Y. 501, 93 Am. Dec. 528; McKnight v. Bell, 135 Pa. 358, 19 Atl. 1036; Byers v. Byers. 183 Pa. 509, 39 L. R. A. 537, 63 Am. St. Rep. 765, 38 Atl. 1037; Buzzell v. Gallagher, 28 Wis. 678.
31. Lavalle v. Strobel. 89 111. 370; Markoe v. Wakeman, 107 111. 251; Russell's Heirs v. Marks' Heirs, 3 Mete. (Ky.) 37. And see Gregg v. Blackmore, 10 Watts (Pa.) 192.
Possession for the statutory period of limitation may no doubt have this effect. See Blanton v. Howard, 148 Ky. 547, 146 S. W. 1089; Carr v. Monzon, 86 S. C. 461, 68 S. E. 661; Rhea v. Craig. 141 N. C. 602, 54 S. E. 408; Oliver v. Williams, 163 Ala. 376, 50 So. 937; John v. Sabattis, 69 Me. 473; between such persons, as having acquired their undivided interests by act of the law.37
Williamson v. Wayland Oil & Gas Co., 79 W. Va. 754, 92 S. E. 424.
32. Meacham v. Meacham, 91 Tenn. 532, 19 S. W. 757; Moore v. Kerr, 46 Ind. 470.
In Texas, the decisions are based on the ground that the statute applies only to a sale of land, and not to the sale of an "interest" in land, therein differing from the English statute. Stuart v. Baker, 17 Tex. 419; Aycock v. Kimbrough, 71 Tex. 330, 10 Am. St. Rep. 745, 12 S. W. 71.
33. Piatt v. Hubbell, 5 Ohio, 243; Brown v. Wheeler, 17 Conn. 345, 44 Am. Dec. 550; Bruce v. Osgood, 113 Ind. 360; Swift v. Swift, 121 Ark. 197, 180 S. W. 742. See Pipes v. Buckner, 51 Miss. 848.
Occasionally the fact that the parties to the oral partition acquiesced therein during their life has been regarded as precluding their heirs or devisees from questioning its validity. Hunt v. Hardin, 172 Ky. 558. 189 S. W. 713; Collier v. Halifax Paper Corp. 172 N. C. 74, 89 S. E. 1006.
Apart from those cases in which the parol partition can be made effective on equitable principles by an application of the doctrine of part performance, and having in view the generally existent requirement, either by force of the Statute of Frauds or other state statute, that an interest in land shall be transferred only by writing, it is somewhat difficult to understand how an oral partition can be regarded as effective. A cotenant has only an undivided interest in any part of the land, and his acquisition of the other undivided interest or interests in a part of the land seems necessarily to involve a transfer of an interest in land. This was recognized at common law, in the case of tenancy in common, in the requirement of livery of seisin for the purpose of effectuating partition,35 and in the case of joint tenancy, in the requirement of a deed of release for that purpose.36 Partition between coparceners could, it is true, be effected at common law by parol, without livery, but this appears to have been due to the disposition of the courts to favor partition
34. Ellis v. Campbell, 84 Ark. 584, 106 S. W. 939; Duffy v. Duffy, 243 111. 476, 90 N. E. 697; Ater v. Smith, 245 111. 57, 91 N. E. 776; Sires v. Melvin, 135 Iowa, 460, 113 N. W. 106; Ebert v. Wood, 1 Binn. (Pa.) 218, 2 Am. Dec. 436; Goodhue v. Barnwell, Rice, Eq. (S. C.) 236; Minis v. Hair, 80 S. C. 460, 61 S. E. 968; Buzzell v. Gal-agher, 28 Wis. 678. See Oliver v.