84 Ark. 584 | Ark. | 1907
(after stating the facts.) The findings of fact by the chancery' court are in accord with the decided preponderance of the evidence. Mr. Freeman lays down the rulé that “whatever effect may be conceded at law to parol partitions, it is quite certain that, when executed by taking possession thereunder, they will be recognized and enforced in equity, particularly when such partition and the possession based upon it have been mutually acquiesced in by the parties for a considerable period.” Freeman, Co-tenancy & Partition, § 402; 21 Am. & Eng. Enc. Law (2 Ed.), 1139. But in this case there was not only possession taken by the brother and sister, as the court found, but each made lasting and permanent improvements, and the making of improvements of that character is in and of itself such performance as takes a contract out of the statute of frauds. Mooney v. Rowland, 64 Ark. 19.
Upon the facts of this case, it certainly does not lie in the mouth of either of the children of Mrs. Campbell, or those succeeding to their rights, to repudiate the contract they had made and executed with each other.
We need not inquire whether the brother and sister had the technical right to give each other pedal possession. They made the agreement with each other concerning their reversionary interest in the property. The mother was consenting, and they each acted upon the agreement for partition by taking possession and making valuable improvements. The mother is dead, and her life estate of dower and the homestead right passed out with her death. The brother and sister and those claiming under the latter (appellants) are plainly estopped by their conduct. See Roltz v. Wert, 103 Ind. 410.
Affirmed.
