Bruce v. Osgood
| Decision Date | 23 December 1887 |
| Docket Number | 12,643 |
| Citation | 14 N.E. 563,113 Ind. 360 |
| Parties | Bruce et al. v. Osgood, Trustee |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled February 18, 1888.
From the Marion Superior Court.
The judgment is affirmed, with costs.
S Claypool, W. A. Ketcham and J. P. Baker, for appellants.
A. C Harris and W. H. Calkins, for appellee.
This was a suit by Osgood, as trustee, against Bruce and wife, to quiet title to certain farm lands in Marion county, of which Bruce and Osgood were formerly tenants in common. The controversy involves the validity and efficacy of certain steps which were taken with a view to effect a partition. The questions arise on the evidence.
The facts seem to be, that Osgood and Bruce acquired title by deeds dated the 5th day of October, 1881, to two hundred and forty-two acres of land in Marion county. The interest of the former was in the proportion of an undivided four-fifths, while that of the latter was an undivided one-fifth of the whole. The title was acquired as the result of a compromise of a certain pending litigation, and the compromise agreement pursuant to which the conveyances to Osgood and Bruce were made provided for the selection of three disinterested freeholders of the county to make partition of the land. Pursuant to this agreement, each of the common owners selected one, and the two thus selected designated a third person, the three being called commissioners, for the purpose of effecting a division of the land according to the respective interests of the owners.
Two of the persons agreed upon and reported a division, but the division proposed by the report, proving unsatisfactory, seems to have been disregarded by mutual consent. The evidence tends to show that, after some consultation between the parties and their attorneys, it was agreed that a tract containing 56 72/100 acres, described by metes and bounds, should be set off to, and accepted by, Bruce as his share, and that what remained of the two hundred and forty-two acres was to be awarded to, and accepted by, Osgood as equivalent to his four-fifths interest. Conveyances were to be made accordingly. There is evidence tending to show that, after this arrangement was agreed upon by the parties, they consented that the commissioners hereinbefore mentioned should report a division in conformity with this agreement. This was done accordingly.
The evidence tends to show that Osgood caused the division line between the several tracts, as thus allotted, to be fixed by a surveyor, and to be indicated by a turn-row, some seven feet wide, and that he went into possession of the part allotted to him, and made improvements of some value thereon. There is also some evidence that Bruce recognized the partition thus made by taking exclusive possession of the crops grown on the tract allotted him.
No deeds were interchanged, and later on Bruce repudiated the alleged partition. There is no suggestion of fraud or inequality in the division.
The court below found that partition had been duly made, and adjudged that the titles of the respective parties be quieted according thereto.
In favor of a reversal, it is argued (1) that the evidence does not disclose an agreement to make partition, and that the second report of the commissioners was wholly unauthorized; and (2) that if there was an agreement to make partition it was void, not having been consummated by writing and the taking of possession, or of anything equivalent thereto.
That an agreement to make partition, which rests merely in parol, and under which no exclusive possession has been taken, is not enforceable, may be conceded. It is, however, a well settled doctrine of this and other courts, that a parol partition of lands between tenants in common, which has been carried into effect and consummated by possession taken by each of the share so allotted him, will be valid and binding. Moore v. Kerr, 46 Ind. 468; Bumgardner v. Edwards, 85 Ind. 117; Hauk v. McComas, 98 Ind. 460; Savage v. Lee, 101 Ind. 514; Wright v. Jones, 105 Ind. 17, 4 N.E. 281; Wood v. Fleet, 36 N.Y. 499; Grimes v. Butts, 65 Ill. 347; Shepard v. Rinks, 78 Ill. 188; Long's Appeal, 77 Pa. 151; Wood Frauds, section 229.
While it is true, that a partition which fully accomplishes the severance of the previously existing relation of tenants in common in the undivided whole, and vests the possession to an allotted part in each, is not such a transfer of title as will be affected by the statute of frauds (Moore v. Kerr, supra; Calhoun v. Hays, 8 Watts & Serg. 127; Mellon v. Reed, 114 Pa. 647, 8 A. 227), it is, nevertheless, not to be understood that a parol agreement for the partition or exchange of lands, wholly unexecuted, is enforceable notwithstanding the statute. Knapp Partition, 466, 467.
Such an agreement is not enforceable unless it has been so far executed by taking possession, or by the performance of such acts in reliance thereon, as to entitle parties interested to...
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