M'Call v. Reybold

1 Del. 146

• Court: Superior Court of Delaware
• Decided: July 1, 1833
• Status: Published

Opinion

The Chief Justice (Clayton,)

in charging the jury

Traced the descent minutely from Patrick Porter and the intermediate conveyances, and showed that the title to one-half of the marsh was in the plff., and to the residue in deft. He then stated the question to be whether there had ever been a partition, either actual, or such a holding as would amount in law to a partition. It has been thrown out in the debate that a partition by paroi might even now be sufficient, but we apprehend that since the statute of frauds a partition to be valid must be in writing. The construction that the court put upon the deed between Rice and Veach is that it did effect a partition in relation to the upland, for it marked and defined the holdings; but there is nothing in the deed itself frpm which you could collect what portion or part of the marsh either of the contracting parties was thenceforth to hold in severalty, nor did it distinctly refer to previous holdings, so as to fix which lot should be Rice’s and which Veach’s. The terms too seem to imply the contemplation of a subsequent division. We are therefore of opinion that this deed amounts only to an agreement to divide the marsh, and is not an actual division. The jury will perceive the importance of this point; for, if the possession has not been severed, the plff. and deft, are tenants in common, and this action cannot be sustained; for one tenant in common cannot maintain trespass against his co-tenant, except under peculiar circumstances, as where there has been a destruction of the thing held in common, or after a recovery in ejectment, &c.

But the plff. considers that he has proved a several holding long enough back to satisfy you that there was a partition between Porter and Jones, and he has proved a several holding by Evan Rice and his descendants for eighteen, nineteen or twenty years, and for ten years since, a disturbed possession. We leave the evidence on this subject with the jury, remarking that where land descending from a common ancestor is held a part by one, and another part by another heir, without either interfering with the other for so long a period as twenty years, it would be strong evidence of a partition.

JR. H. Bayard and Read, jun., for plaintiff. Rogers and J. M. Clayton, for defendant.

Verdict for plaintiff.