43 Pa. 413 | Pa. | 1862
The opinion of the court was delivered, by
This is not a bill for partition. On the contrary, it avers that partition has already been made by the agreement of the parties. Its object is rather to obtain a decree for the quiet enjoyment of the land which the complainant alleges became his in severalty by virtue of a former parol partition. Courts of equity have jurisdiction in cases of partition, and, possibly, where there has been long acquiescence and possession under a parol division of lands previously held in common or joint tenancy, equity will quiet the enjoyment of such estates. Such seems to have been the opinion of Lord Hardwicke in Ireland v. Rittle et al., 1 Atkyn’s Cases 256. And there are very many cases analogous to bills of peace, in which a chancellor has interfered to quiet the enjoyment of a right, or to establish it by a decree, or to remove a cloud from the title. Indeed, .this is one of the well-recognised branches of equitable jurisdiction, though its extent is not clearly defined.
The difficulties in the way of the complainant in this case are found not so much in the jurisdiction of the court as in the failure of proof that there ever ivas a complete parol partition. Unless there was, the complainant manifestly has no case — no title in severalty, either in law or in equity. It is not enough that the parties agreed to fix a line of division between them, and that they actually ran and marked such a line, if it was also a part of the arrangement that owelty should be adjusted. Fixing the amount of owelty was as essential to the partition as was the adoption of the dividing line. In this case all the evidence as well as the report of the master shows that the farm which the parties held in common was not divided equally in quantity or in value. All the buildings stand upon the part which the complainant claims to have been allotted to him, and it was contemplated by both parties that owelty should be agreed upon and paid. What that should be was, however, never determined, and therefore there never was complete partition. All the steps taken were necessarily but experimental, and as insufficient to convert the joint ownership into ownership in severalty, as would be a sale to pass title, without any agreement for the price. In view of the facts, established beyond contradiction, that an equalization of the value of the two parts of the farm was intended to be made by the agreement, and that it never was, it is hard to believe that the division line was run for any other purpose than (as asserted by the defendant) to ascertain whether the parties could make permanent partition and division by said line, by an
The decree of the District Court, dismissing the bill of the complainant, is affirmed with costs.
