The opinion of the court was delivered, by
Strong, J.
That in 1837 the ancestor of the plaintiff had an equitable title to an undivided moiety of the three hundred acres, and that he and Rider were then tenants in common of the whole, are facts not in dispute. The allegation of the defendant is that a parol partition was made in 1838, by which he acquired title in severalty to one hundred and fifty acres of the west end of the tract, and that his co-tenant, Jacobs, became owner in severalty of the other one hundred and fifty acres, the east end. It is now contended there was no sufficient evidence of such parol partition to take the case out of the Statute of Frauds and Perjuries. It must be admitted the evidence was not very satisfactory, and perhaps, were the matter “res nova” w.e should be justified in holding that it should not have been submitted to the jury. But the case has been in the court heretofore, and upon substantially the same evidence. It was then held (10 Wright 378), that the testimony, if found by the jury to be true, was sufficient to establish an executed parol division of the land. We do not now feel at liberty to depart from what was then ruled, and hence we cannot say there was error in the answer given to the plaintiff’s first and seventh points.
■ The state of the record is such that we cannot know whether the jury found there had been an executed parol partition. If there was such a partition, the right of the plaintiff to recover any portion of the west end of the tract was gone, and the subject of the controversy between the parties was reduced to the eastern one hundred and fifty acres. • How was the plaintiff’s title to that in severalty divested ? This brings us to other important questions in the case. The defendant claims that the title to that part of the tract has also become vested in him, and he endeavours to sustain his right to it in three ways; under the Statute of Limitations of March 26th 1785; under a tax sale of the whole three hundred acres made December 14th 1830, to John Philliber, and by him assigned to the defendant May 9th 1842 ; and under conveyances obtained by him from Latimers, the holders of the legal title in 1849 and 1853. We shall consider each of these.
The ejectment was commenced on the 24th of July 1860. If the defendant has a title to any part of the east end of the tract, the part which he alleges was set off in severalty to Jacobs in 1838, he must have had adverse, continued and exclusive possession of that part from July 24th 1839, down to the commencement [383]*383of this suit. But of any such possession by him of the eastern division there is no evidence whatever. That he held-wN; western division, that which he claims was allotted to him, tnat hg cultivated and improved it, was in evidence, and the court was therefore justified in saying that if there was a parol partition, twenty-one years before the commencement of the suit, between Jacobs and Rider, and the latter had since held the continued, adverse, notorious and exclusive possession of the west end of the tract, he would have a perfect title by the Statute of Limitations as to that. The fifth point of the plaintiffs assumed that there had been no partition. It asked no instruction for the case as it was, if the jury found that Jacobs had become an owner in severalty. And even if the tenancy in common continued, there was some evidence of ouster from the west end before 1839 found in the acts of Rider, evidence which could not have been withdrawn from the jury: Frederick v. Grey, 10 S. & R. 182. It was impossible, therefore, for the'court to affirm the plaintiff’s fifth point as it was presented. The court did not charge that the defendant was protected 'in the possession of the east end by, the statute, nor did they leave to the jury to find that he was thus protected, and clearly he was not.
Passing now to the second ground of defence, and assuming still that the jury found a parol partition executed, we have to consider the effect of the tax sale. It was a sale of the whole three hundred acres assessed to Rider and Jacobs in 1838. Probably the assessment was made in the fall of 1837, while they -were confessedly tenants in common. The sale was made December 14th 1840, to John Philliber, who, on the 9th May 1842 assigned his deed to Rider for the consideration of $15.40. Had Rider and Jacobs continued tenants in common, this transaction could be called nothing more than a redemption. Rider could have obtained by it no advantage over his co-tenant. It would not even have converted him into a trustee for his co-tenant. The outstanding right was called in within the period allowed for redemption. But if when the land was sold the parties had become one the owner of the east end in severalty, and the other the sole owner of the west end, the effect of the transaction might be different, and it clearly would be, if the taxes for which the land was sold had been assessed after the tenancy in common had ceased. There would then have been nothing to prevent either of the parties from buying the land of the other, exclusively for his own use. This case differs, however, from the one supposed. The taxes were assessed while Rider and Jacobs were joint owners. They were a burden upon the whole three hundred acres. It was as much Rider’s duty and interest to pay them as it was the duty and interest of Jacobs. And when the land was sold, recovering the title was essential to the preservation of Rider’s [384]*384. interest. It was a redemption of his own land then held in severalty— /[.do not think it can be regarded as anything more, certainly not an acquisition of the title to'the east end of the property —not even the acquisition of a trust for Jacobs. It was simple redemption of his own parcel; and consequently of the parcel of Jacobs. There is nothing then in the tax sale to divest the title of the plaintiff to the east end, if it be assumed that partition was made.
It follows that if the defendant has any protection against the claim of the plaintiffs, it must be found in the conveyances he obtained from the Latimers. The evidence in relation to these was that the original article of agreement between Rider and Jacobs and Gaskell, the agent of the Latimers, was foi1 some years in the possession of Jacobs. He died in 1849. Not long before his death Rider obtained possession of the article, by the pretence that he wanted to borrow money, and wanted the papers to give the land for security. Having obtained them, he went to Gaskell, told him that Jacobs’s part had been sold for taxes, that the time of redemption had expired, that the land wa!s lost to Jacobs, and that he (Rider) had bought the land from the purchaser at tax sale. Mr. Gaskell was induced to give a new article in lieu of the first, by which the Latimers agreed to sell the whole three hundred acres to Rider alone, for a sum which appears to be about what remained unpaid of the purchase-money mentioned in the first article. This new agreement was dated on the 9th of June 1849. Prior to that time Jacobs lived near Pittsburgh, and he continued to live there until he died. On the 19th of January 1853, Rider obtained a deed from the Latimers, for himself, for two hundred acres, and at his request a deed was made to a man named Dietrich for the other hundred acres. If these facts were believed by the jury, and there was abundant evidence of them, a gross fraud was perpetrated by Rider in obtaining the legal title to himself. His representations to Jacobs were false, and his assertions to Gaskell. He obtained the first article by covin, and was thus enabled to deliver it up, and procure another.
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The opinion of the court was delivered, by
Strong, J.
That in 1837 the ancestor of the plaintiff had an equitable title to an undivided moiety of the three hundred acres, and that he and Rider were then tenants in common of the whole, are facts not in dispute. The allegation of the defendant is that a parol partition was made in 1838, by which he acquired title in severalty to one hundred and fifty acres of the west end of the tract, and that his co-tenant, Jacobs, became owner in severalty of the other one hundred and fifty acres, the east end. It is now contended there was no sufficient evidence of such parol partition to take the case out of the Statute of Frauds and Perjuries. It must be admitted the evidence was not very satisfactory, and perhaps, were the matter “res nova” w.e should be justified in holding that it should not have been submitted to the jury. But the case has been in the court heretofore, and upon substantially the same evidence. It was then held (10 Wright 378), that the testimony, if found by the jury to be true, was sufficient to establish an executed parol division of the land. We do not now feel at liberty to depart from what was then ruled, and hence we cannot say there was error in the answer given to the plaintiff’s first and seventh points.
■ The state of the record is such that we cannot know whether the jury found there had been an executed parol partition. If there was such a partition, the right of the plaintiff to recover any portion of the west end of the tract was gone, and the subject of the controversy between the parties was reduced to the eastern one hundred and fifty acres. • How was the plaintiff’s title to that in severalty divested ? This brings us to other important questions in the case. The defendant claims that the title to that part of the tract has also become vested in him, and he endeavours to sustain his right to it in three ways; under the Statute of Limitations of March 26th 1785; under a tax sale of the whole three hundred acres made December 14th 1830, to John Philliber, and by him assigned to the defendant May 9th 1842 ; and under conveyances obtained by him from Latimers, the holders of the legal title in 1849 and 1853. We shall consider each of these.
The ejectment was commenced on the 24th of July 1860. If the defendant has a title to any part of the east end of the tract, the part which he alleges was set off in severalty to Jacobs in 1838, he must have had adverse, continued and exclusive possession of that part from July 24th 1839, down to the commencement [383]*383of this suit. But of any such possession by him of the eastern division there is no evidence whatever. That he held-wN; western division, that which he claims was allotted to him, tnat hg cultivated and improved it, was in evidence, and the court was therefore justified in saying that if there was a parol partition, twenty-one years before the commencement of the suit, between Jacobs and Rider, and the latter had since held the continued, adverse, notorious and exclusive possession of the west end of the tract, he would have a perfect title by the Statute of Limitations as to that. The fifth point of the plaintiffs assumed that there had been no partition. It asked no instruction for the case as it was, if the jury found that Jacobs had become an owner in severalty. And even if the tenancy in common continued, there was some evidence of ouster from the west end before 1839 found in the acts of Rider, evidence which could not have been withdrawn from the jury: Frederick v. Grey, 10 S. & R. 182. It was impossible, therefore, for the'court to affirm the plaintiff’s fifth point as it was presented. The court did not charge that the defendant was protected 'in the possession of the east end by, the statute, nor did they leave to the jury to find that he was thus protected, and clearly he was not.
Passing now to the second ground of defence, and assuming still that the jury found a parol partition executed, we have to consider the effect of the tax sale. It was a sale of the whole three hundred acres assessed to Rider and Jacobs in 1838. Probably the assessment was made in the fall of 1837, while they -were confessedly tenants in common. The sale was made December 14th 1840, to John Philliber, who, on the 9th May 1842 assigned his deed to Rider for the consideration of $15.40. Had Rider and Jacobs continued tenants in common, this transaction could be called nothing more than a redemption. Rider could have obtained by it no advantage over his co-tenant. It would not even have converted him into a trustee for his co-tenant. The outstanding right was called in within the period allowed for redemption. But if when the land was sold the parties had become one the owner of the east end in severalty, and the other the sole owner of the west end, the effect of the transaction might be different, and it clearly would be, if the taxes for which the land was sold had been assessed after the tenancy in common had ceased. There would then have been nothing to prevent either of the parties from buying the land of the other, exclusively for his own use. This case differs, however, from the one supposed. The taxes were assessed while Rider and Jacobs were joint owners. They were a burden upon the whole three hundred acres. It was as much Rider’s duty and interest to pay them as it was the duty and interest of Jacobs. And when the land was sold, recovering the title was essential to the preservation of Rider’s [384]*384. interest. It was a redemption of his own land then held in severalty— /[.do not think it can be regarded as anything more, certainly not an acquisition of the title to'the east end of the property —not even the acquisition of a trust for Jacobs. It was simple redemption of his own parcel; and consequently of the parcel of Jacobs. There is nothing then in the tax sale to divest the title of the plaintiff to the east end, if it be assumed that partition was made.
It follows that if the defendant has any protection against the claim of the plaintiffs, it must be found in the conveyances he obtained from the Latimers. The evidence in relation to these was that the original article of agreement between Rider and Jacobs and Gaskell, the agent of the Latimers, was foi1 some years in the possession of Jacobs. He died in 1849. Not long before his death Rider obtained possession of the article, by the pretence that he wanted to borrow money, and wanted the papers to give the land for security. Having obtained them, he went to Gaskell, told him that Jacobs’s part had been sold for taxes, that the time of redemption had expired, that the land wa!s lost to Jacobs, and that he (Rider) had bought the land from the purchaser at tax sale. Mr. Gaskell was induced to give a new article in lieu of the first, by which the Latimers agreed to sell the whole three hundred acres to Rider alone, for a sum which appears to be about what remained unpaid of the purchase-money mentioned in the first article. This new agreement was dated on the 9th of June 1849. Prior to that time Jacobs lived near Pittsburgh, and he continued to live there until he died. On the 19th of January 1853, Rider obtained a deed from the Latimers, for himself, for two hundred acres, and at his request a deed was made to a man named Dietrich for the other hundred acres. If these facts were believed by the jury, and there was abundant evidence of them, a gross fraud was perpetrated by Rider in obtaining the legal title to himself. His representations to Jacobs were false, and his assertions to Gaskell. He obtained the first article by covin, and was thus enabled to deliver it up, and procure another. Undoubtedly he became a trustee for Jacobs, or the heir of Jacobs, of that part of the east end of the tract for which he obtained title from the Latimers. Holding thus the title to that parcel as a trustee ex maleficio, he must surrender the possession unless he is protected by the sixth section of the Act of Assembly of the 22d of April 1856. That section limits to five years the time within which an action may be brought to enforce any implied or resulting trust as to realty. Rut there .is a proviso that as to any one affected with a trust by reason of his fraud, the said limitation shall begin to run only from the discovery thereof, or when by reasonable diligence the party defrauded might have discovered the same. In reference to the [385]*385effect of this statute upon the case, the plaintiff’s fourth point and the answer thereto were all-important. The point was, “ that if Rider acted fraudulently, a trust would arise by operation of law to Jacobs, and unless Jacobs had notice of such trust in his lifetime, or, unless Mrs. Maul, his heir, had actual notice before the 5th of October 1856, at which time she was married, the statute would not bar her rights; and, so far as it is concerned, the plaintiffs are entitled to recover.” To this the court answered, “If Rider undertook to act as the agent of Jacobs, and fraudulently procured the title in his own name, it would enure to the benefit of Jacobs, and Rider would be a trustee of Jacobs by reason of fraud; and in that case the Statute of Limitations would begin to run only from the discovery of the fraud, or when by reasonable diligence Jacobs might have discovered the same.” It may be said of both the point and the answer that they are not strictly accurate. The point treats notice by Jacobs in his lifetime, or actual notice to Mrs. Maul, his daughter, before her marriage, as alone sufficient to bar the action under the statute ; but the proviso to the sixth section regards the person defrauded as affected by the limitation, though he has no notice of the fraud, when by reasonable diligence he might have discovered it. And the answer is obnoxious to two objections. The first is that it was qualified by the element of a supposed agency by Rider for Jacobs. The court affirmed that fraud in procuring the title in his own name would raise a trust in Rider for Jacobs if Rider undertook to act as Jacobs’s agent. And so it would have done without any such undertaking. Yet the language of the judge was fitted to lead the jury to the belief that an attempted agency was a necessary constituent to the implication of a trust. A more serious objection to the answer is, that, even if abstractly correct, it was inapplicable to the case. The legal title to the land was not acquired from the Latimers until January 19th 1853. Of course there could have been no trust of that before that time. But Jacobs died in 1849. He never, therefore, had any knowledge of the fraudulent acquisition, or any means of knowledge. When he died, his daughter the plaintiff was a minor, and she did not attain her majority until December 5th 1855, within five years from the time when this action was brought. I find no evidence that she ever knew of the fraudulent acquisition of the title before she came of age, or before this suit was brought, or evidence that reasonable diligence would have revealed the fraud to her. It is true the court was not asked to charge that there was no such evidence, and here is the difficulty. Had they been so asked, they could not have refused the request; but ve cannot reverse the judgment merely because the court neglected to give instruction which they were not asked to give, and especially when, as in this case, their attention was with[386]*386drawn from the fact that evidence was wanting by the form of the point presented. Yet it is manifest that the decision of the case may have turned upon the answer given to this point; and we cannot shut our eyes to the fact that the plaintiff may have been defeated solely because the jury may have found she had notice of the fraud, or might have discovered it by reasonable diligence without any evidence to warrant such a finding. We think therefore the case ought to go back for another trial, not-for this reason, but because the jury may have understood from the answer that there was no such fraud as raised a trust, unless Rider undertook to act as agent of Jacobs.
If it be said that a trust arose in 1849, when the defendant gave up the first article and took a new one between Gaskell and himself alone, the same considerations are applicable. There is no evidence that Jacobs ever knew of such a substitution. He died in that year, whether before or after the fraudulent procurement of the second article does not appear, and there is no evidence to bring home to his minor child knowledge of the fraud, or want of reasonable diligence in discovering it.
We have thus far considered the case as if the jury had found the alleged parol partition proved, and as if the only contest was respecting the east end of the whole tract, the parcel allotted to Jacobs in the division. If there was no parol partition, the defendant cannot protect himself against a recovery of an undivided moiety by any other means than the Statute of Limitations of 1785, or the limitation prescribed to the assertion of trusts by the Act of 1856, unless the jury should believe there was no fraud.to raise a trust, which is hardly possible. The Act of 1785 will protect him in the possession of all which he took into his actual and exclusive possession, after having ousted his co-tenant, and which he held adversely and continuously twenty-one years before the suit was brought, and it will protect him no farther. And the Act of 1856 will protect his possession of the remainder only in case the owner defrauded in the procurement of the title had notice of the fraud five years before this suit was brought, or might have discovered it with reasonable diligence.
We discover nothing else in the record that requires notice, unless it be the fifth point, which was answered correctly, and the answer to the eighth point, to which no just exception can be taken. A parol partition of lands held in common by an equitable title can be made.
Judgment reversed, and a venire de novo awarded.