The opinion of the court was delivered by
In 1859, Lott Kennemore sold and conveyed to his two sons, Moses and George, a tract of land by metes and bounds, containing 225 acres, with a reservation in favor of himself and wife, Rebecca, during their lives. Moses and George both died in 1864, during the war — George intestate and unmarried, leaving his father and brothers and sisters as his heirs at law. Moses, soon after the deed aforesaid, removed to Georgia, and he left as his heirs at law a widow and children. After the death of George, the father, Lott Kennemore, made a deed of, 100 acres of the part upon which George had lived to Elias E. Kennemore, and he, being in possession of the land, purchased the interests of Jacob and Judy Kennemore and of Phoebe Mulinix.
In 1885, Lott Kennemore and his wife, Rebecca, being dead,
The cause was referred to J. J. Lewis, Esq., as special referee. The defendants offered Jacob Kennemore, another brother of George and Moses, to prove the parol partition between the dead brothers and the sale of his parcel by Moses to Milton Mauldin. The testimony was admitted against the objection of the plaintiffs, and the referee, among other things, found “that some time in the fall of 1859, George Kennemore and Moses Kennemore made a parol partition of the land deeded to them by their father; that Moses sold his part to Milton Mauldin, and George went into possession of his part,” &e. Upon exceptions to this report, Judge Hudson confirmed it, adjudging that there was a valid and binding parol partition between Moses Kennemore and George Kennemore, in the fall of 1859, of the land conveyed to them in January, 1859, by Lott Kennemore, and ordering partition accordingly. The plaintiffs appeal to this .court upon the following exceptions:
I. “Because the testimony of Jacob Kennemore, a party in interest, was inadmissible to prove declarations and transactions between himself and Moses and George Kennemo.re, deceased, as well as to prove declarations and transactions between the said Moses and George Kennemore, the said Jacob Kennemore participating in the said transactions and declarations at the time of their occurrence, and his honor erred in admitting the same and
II. “Because all the testimony introduced to prove the parol partition was vague, uncertain, and indefinite, and does not furnish the clear proof that the law requires.
III. “Because his honor erred in holding that there was a valid and binding parol partition between Moses and George Kennemore, in the fall of 1859, of the land conveyed to them by Lott Kennemore, whereas he should have held that the evidence was, in law, too indefinite and uncertain to establish a parol partition.
IY. “Because his honor erred in holding that the said partition was consummated by the sale of his part by Moses and the posséssion of his part by George; whereas he should have held that there was no sufficient evidence of sale by Moses, and no evidence that he ever took possession or gave any one else possession of any part of the said land, or received any money for the same, George simply continuing the possession with his father, Lott Kennemore.
Y. “Because his honor erred in holding that all of the land deeded by Lott Kennemore to his sons, Moses and George, except the two tracts deeded by Moses to Milton Mauldin, fell to George, and is liable to partition amongst the parties to this suit as heirs of George; whereas he should have held that the said tract of land was liable to partition among the heirs of Moses and George, as set forth in the complaint.
YI. “Because the evidence in the case is manifestly insufficient to establish a parol partition, or such possession as will make it valid, and his honor erred in not so holding.”
Xs to the admission of the testimony of Jacob Kennemore, who had disposed of his interest in the lands, but was nominally a party. When' the testimony was first offered, objection was made, and it was taken down subject to objection. It seems, however, that there was no exception to, the referee’s report on that ground, and that the matter was not considered by the Circuit Judge. He made no ruling upon the subject, and does not even state whether it was considered in reaching his conclusions. But waiving that, why was it not admissible ? The witness said: “They [the brothers, Moses and George] ran off the land; I and George
The only other question is one mainly of fact, whether the judge committed error in finding that there was a valid and binding parol partition between Moses and George Kennemore of the land conveyed to them in 1859. As to the fact, the Circuit Judge concurred with the referee, and in such case it is very well known that this court will rarely disturb the finding below. It seems to us, however, that the finding is not without evidence to support it. A portion of the lands conveyed to the two sons, most certainly afterwards (about the time Moses removed to Georgia) was sold to Milton Mauldin. True, the deed was signed by the father and the two sons, but as the father had reserved an interest during his life, it was probably signed in that way in order to prevent any question as to the title.
We know of no reason why there may not be a parol partition as well as a parol sale of lands, provided there is sufficient proof of part performance to take the transactions out of the statute of frauds. Actual possession is deemed the most satisfactory evidence of part performance. See Slice v. Derrick, 2 Rich., 629; 4 Johns., 212; Mims v. Chandler, 21 S. C., 480. It is very manifest that the part sold to Milton Mauldin has been in his exclusive possession for years; and George had possession of the other until he died in 1864. On his part was the old homestead,
The judgment of this court is, that the judgment of the Circuit Court be affirmed.