Ebert v. Wood , 1 Binn. 216 ( 1807 )

Tilghman C. J.

delivered the opinion of the court.

The defendant in error brought an action of partition against the plaintiff in error, who pleaded non tenent insimul, and thereupon issue was joined. On the trial of the issue, Ebert offered to give evidence of a parol partition having been made bylines run and marked on the ground, and of possession having been taken by each party respectively according to this partition, and the part allotted to each having been held in severalty from the time of the partition to the time of bringing the action. This evidence was overruled by the court, upon which a bill of exceptions was taken, and whether the evidence was properly rejected is the question now to be decided.

The defendant in error contends that the evidence ought not to have b.een admitted, 1st, because the partition was made by parol; 2d, because if it had been in writing it was not admissible on the issue joined, but ought to have been specially pleaded.

The first objection is founded on the act of Assembly of 21st March 1772, by which a writing is made necessar}? for the passing of any estate or interest in lands. This act of Assembly, so far as respects the point under consideration, is in substance the same as the English statute of frauds and perjuries; in the construction of which it has been determined that specific execution of a parol agreement shall be decreed in equity, where the agreement has been carried into effect in part only. This determination was founded on two principles: 1st, that where the parties have acted upon their agreement, there is no danger of perjury in proving it; and 2d, because it is against equity that a man should refuse to perfect an agreement, from which he had derived benefit by an execution in part. Whether the courts of Chancery have gone further than they ought, in thus indirectly giving effic- .cy to a parol agreement concerning land, we do not think ourselves at liberty now to inquire; because the principies I have mentioned have been adopted by this court, and long considered as the law of the land; and to question them ~’ now, would shake many titles acquired under their authority. We therefore think ourselves bound to say that the evidence offered by Ebert ought to have been received, unless it was improper because not applicable to the issue joined; which is the second point for consideration.

The plaintiff below declared that he and the defendant held the land together and undivided; the defendant pleaded that they did not hold it together; and this was the point of the issue. Now what was the evidence offered by the defendant? Why that he and the plaintiff had made partition, which was in direct affirmance of his plea, that they did not hold together; because if they held in severalty, they could not hold together. The court are of opinion therefore, that the evidence offered by the defendant below ought to have been received, and that the judgment of the court of Fayette' county was erroneous, and must be reversed.

Judgment reversed.