McMahan v. McMahan

13 Pa. 376 | Pa. | 1850

The opinion of the court was delivered by

Bell, J.

The proof is plenary, and the jury has found, in accordance with it, that, in the year 1830, all the parties holding an interest in the real estate which was of Benjamin McMahan, the elder, (excepting his son Daniel) made a parol partition of it, by which the portion of each was set apart by metes and bounds, distinctly marked on the ground, save the purparts of John and Daniel, and these, at the instance, and in pursuance of the express request of John, were thrown together in common. This partition was followed by actual possession, each tenant entering on the part allotted to him — John holding the only undivided portion in his own right, and as the representative of his absent brother, Daniel.

Had the latter been present and actually assenting to this proceeding, no question could be admitted of its entire validity; for it is long since settled that such a division, if fair and equal, executed by a corresponding possession, is good, though some of the tenants be under coverture, and others of them elect to hold their purparts, as before, by community of possession: Litt. sec. 250; Co. Litt. 169, a, 180, 267, a; Doctor vs. Priezt, 2 Stra. 783; Ebert vs. Wood, 1 B. 216; Barrington vs. Clark, 2 P. R. 115; 3 Burr. 1801; Calhoun vs. Hays, 4 W. & S. 127; Act of 5th Feb. 1821; Alnatt on Part. 15, 20. The effect of such an election is to continue the relation before subsisting between all who join in it, while the other parties are constituted tenants in severalty, by an act so unequivocal that the law finds no danger in recognizing and sanctioning it.

But Daniel was neither present nor assenting to the arrangement made by his brethren; nor had he authorized John to represent him in the transaction. He was, consequently, not bound by it, and might, at his option, repudiate it, by demanding a new partition of the whole tract, irrespective of the former division, and regardless of the long continued possession under it. On the other hand, he may adopt all the features of that division, by the simple recognition of the acts done by John, in his name; for the maxim is, that subsequent assent to an assumed agency is equivalent to a precedent authority. By such ratification, the doings of the self-constituted agent become, in contemplation of law, the acts of the principal, with all the consequences that follow the same act done by previous authority; unless, indeed, it might operate to over-reach and defeat mesne rights acquired bona fide, by third persons, or subject them to some loss or penalty, to which, otherwise, they would not be liable: Clark’s Executors vs. Van Riemsdyk, 9 Cranch, 153, 161; Delefield vs. The State of Illinois, 26 Wend. Rep. 193, 226; Wilson vs. Tammon, 6 Man. & Cran. 236, 244; Hinman vs. Cranmer, 9 Barr, 40; 1 Am. Lea. Ca. 420, et seq. in note; an effect which cannot be attributed to the ratification in this instance — evidenced by the institution of the present action. On the contrary, its result is to fortify and establish rights founded in the participation of the agent, and which he is now attempting to destroy.

It is, however, objected there is no evidence that John assumed to act as Daniel’s representative; or if he did, there was no entry by him, in pursuance of the partition; and consequently, so far as he is concerned, it is within the statute of frauds. But the plaintiff in error is mistaken in both these points. The evidence is full, that, asserting an assumed obligation to pay certain debts due from Daniel, wherefore he had an interest in Daniel’s share of the land, as security for the proposed outlays, John, acting as the agent of Daniel, preferred a request that the purpart of the latter should be laid off in connection with his own share. This was acceded to by the other owners, on his promise to stand between them and Daniel — a promise in which they seem to have put the fullest reliance when carrying out the family arrangement. This of itself is sufficient to estop John from pursuing his present purpose to impeach the partition, on the ground of Daniel’s non-participation in it; for admissions or assertions that have been acted on by others, are conclusive against the party making them, and will bar every attempt to erect a defence upon their alleged falsity : 1 Green. Ev. secs. 207, 208. Indeed, John seems to have been the principal actor in bringing about a division of his father’s land, from which, doubtless, he promised himself an advantage; and yet, strangely enough, he now assumes towards it an attitude of hostility, not because his brother repudiates it, but in an effort to defeat his assent to it; and this, too, upon, to me, the incomprehensible notion that by laches, which consists only in permitting John to enjoy the occupany of his brother’s share for a series of years, the latter is forbidden to confirm the acts of the former by some unexplained equity residing in the quondam agent. Had Daniel, after the lapse of time which has intervened here, attempted to reverse the partition made, in his absence, by his brothers and sisters, and thus grasped at a share of the improvements made by each of them on their several allotments, I could have ima- ’ gined the ground of inequity charged against him; but I am totally at a loss when the accusation is made to rest on his full recognition of their acts, and his disclaimer of all right to participate in their improvements. I cannot avoid adding that, in this business, so far as we may judge from the record, John stands in a most unamiable light. He has been permitted to enjoy, for years, the patrimony of his brother, specially set apart on his own suggestion and assumption of creditorship; and now, when the long absent re-appears to claim his right, subject to the arrangements made for him, and under the conception of every just demand residing in the agent, he is told that the only path to a successful vindication of his title lays over the ruins of a family compact, in the faith of which his relatives have lived and died. I cannot but rejoice that we are not compelled, by any abstract rule of law, to countenance a proposition so fraught with injustice, not only to the plaintiff below, but also to those who have expended their means in full reliance upon the promises of the defendant.

The attempted interposition of the statute of frauds is also without effect. Even admitting an actual entry by the defendant, upon the purparts allotted to him and Daniel, was necessary to consummate the partition — a position I by no means concede— we have here ample evidence of such exclusive occupancy. True, the defendant had a foothold, in his father’s time, and by his permission, in a small portion of the tract; but it was not until after the partition made, he entered upon the enjoyment of the whole fifty-six acres, thirty perches; and it is not denied that this entry was by virtue of, and in conformity with the partition. Besides, John’s prior restricted occupancy, on the death of his father, assumed the condition of a possession in common with the other tenants — per my et per tout; and his subsequent distinct holding is referable alone to the actual division then made. The case is, therefore, strictly within the rule which looks to part performance of an oral contract touching the title of lands, as essential to found a claim for a specific performance of it.

At the time, then, of the institution of this suit, all the owners of this tract of land stood in the relation of tenants in severalty, in respect to each other, except John and Daniel, who, by their own choice, continued to be tenants in common of that portion assigned to them. As a necessary consequence, the objection that this action should have been brought against all of the heirs, fails with the assumption of a continued joint holding, upon which it is bottomed. The joint possession having been severed by a valid act, and John being thus left in the position of one tenant in common claiming in exclusion of his fellow, is subject, alone, to the suit of the excluded tenant. That this suit may be by an action of ejectment, after a simple denial of his right 'to participate in the enjoyment of the land, upon the doctrine of constructive ouster, is established by Law vs. Patterson, 1 W. & S. 184, and many other precedents.

What the court said to the jury on the subject of Daniel’s right to defalk the profits received by John, against the amount of debts paid by the latter for the former, is quite correct. Indeed no exception was taken to it on the argument.

The bills of exception to evidence are subordinate to the general principles already discussed, and are ruled by them. There is nothing in any of the bills requiring distinct discussion.

By moulding the verdict so as to meet the facts of the case and the ascertained conclusions of the jury, the court did no more than was incumbent on it to do. What was said of “back claims or rents” may, if necessary, be rejected as surplusage, though I, by no means, intend to say this is essential. By the record it appears the judgment was entered omitting that portion of the verdict. ,

The errors assigned, and not specifically noticed, were, very properly, not xu-ged on the argument.

Judgment affirmed.

Coulter, J., dissented.