[370]*370Opinion,
Mjr. Justice Clark:
It is admitted, that Robert McKnight, Sr., in the year 1860, died seised inter alia of 174 acres of land in Antis township, Blair county, which embraced the lands in dispute, and that by his last will and testament, admitted to probate 8th January, 1861, he devised the same in fee to his six sons, John, William, Blair, Robert, Wilson, and Reuben, equally and in common. On the 16th March, 1875, when the youngest son came of age, an amicable partition of the testator’s lands was made among them in writing, by the terms of which Blair, William, and Robert took as their share of the estate the 174 acres of land already mentioned, agreeing to pay, in the nature of owelty, to their brothers Wilson and Reuben, each the sum of $750, and to John $100; the widow’s dower in the entire estate, adjusted at $420 annually, to remain a charge, payable in equal parts by all the heirs. On the 23d March, 1875, Blair, William, and Robert, by agreement in writing, subdivided their purpart, Blair taking as his share all that portion of their land lying east of the old township road, containing 96 acres 149 perches, upon which were the buildings, and William and Robert taking the balancé of the tract, lying west of the township road, containing 78 acres 148 perches; Blair assuming payment of the $1,500 to Reuben and William, and of the $100 to John, and agreeing, besides, to give to William and Robert $1,000 worth of the timber land off his tract, according to, the adjustment of three of their neighbors named. An old lane, running in a westerly direction from the township road, divided the purpart of William and Robert into two nearly equal parts. The 39 acre piece, lying north of the lane, was subsequently taken in execution at the suit of Mary McKnight, by the sheriff of Blair county, as the property of William McKnight, and at the June Term, 1884, was sold, and a sheriff’s deed dated 20th June, 1884, was executed and delivered to A. L. McCartney, who on the 15th June, 1885, conveyed to Edward Bell the defendant. The plaintiff, Robert McKnight, conceding Bell’s right to the undivided one half of the land, in the right of his brother William, claims to recover the other half.
The defendant’s contention, however, is that Robert and William McKnight, who it is conceded were originally tenants in common of the 78 acres, long prior to the sheriff’s levy and [371]*371sale, bad executed a parol partition thereof between them, by the terms of which Robert became entitled, in severalty and in fee, to the 39 acres south, and William to the 39 acres north of the lane, the latter being the premises in dispute. Whether any such parol partition was in fact executed as alleged, is therefore the principal question in the cause; for, if there was such a partition, the plaintiff has no right of recovery in this case. Upon a full hearing of all the evidence on both sides, the learned judge of the court below gave binding instructions to find for the plaintiff, and this is the first error assigned.
It is now well settled, notwithstanding what was said in Gratz v. Gratz, 4 R. 410, that a parol partition of lands between tenants in common is not a sale or transfer of lands, within the statute of frauds. If tenants in common, intending to make a partition of their lands, run a line, which is marked on the ground as a division line, and actually take possession of their respective parts in pursuance thereof, and the partition is fully excuted between them, it is sufficient to vest the title in severalty. In Rider v. Maul, 46 Pa. 376, the question was upon the effect of an alleged parol partition between Martin Jacobs and John Rider. At the trial of that case below, the court was requested, in the defendant’s first point, to charge the jury, in substance, that, if they believed that the parties had run a line, which was marked on the ground as a division fine, and had taken possession of their respective parts in pursuance of such division, the partition was executed. The learned judge refused so to charge, saying that the evidence of a parol partition or division was not sufficient to take the case out of the statute of frauds and perjuries, and, further, that the jury should disregard it altogether, and treat Jacobs and Rider as tenants in common. When the case came into this court the judgment was reversed. Mr. Justice Thompson, in delivering the opinion of the court, said: “We are of opinion that the defendant’s first point should have been answered in the affirmative. It was undoubtedly a correct presentation of the law, as a general proposition: Ebert v. Wood, 1 Binn. 216; Pugh v. Good, 3 W. & S. 56 ; Calhoun v. Hays, 8 W. & S. 127; and McMahan v. McMahan, 1 Har. 376; and there was testimony of which it was predicated, which, if true, (and this was for the jury,) was sufficient to establish an executed parol division of the land.” [372]*372When the ease came up the second time, 70 Pa. 15, there was, it is true, an intimation that, if the question was res nova, perhaps the court would take a different view, but the former ruling was permitted to stand. But whatever doubt may have arisen, from what was said in the cases cited, was dispelled by the decision of this court in the very recent case of Mellon v. Reed, 114 Pa. 649, where we said, in the most explicit manner, that “ a partition which merely severs the relation existing between tenants in common in the undivided whole, and vests title to a correspondent part in severalty, is not such a sale or transfer of title as will be affected by the statute of frauds.” The reason of this rule rests in this: that the partition is not an acquisition or purchase of land, nor is it in any proper sense a transfer of the title to land; it is a mere setting apart in severaltjr of the same interest held in common, not in other, but in the same lands. A parol partition, when fair and equal, and followed by due execution, has been held to bind even infants and femes covert; and a judgment or a mortgage or the lien of a legacy against one of the tenants in common will, after the partition, ipso facto cease to bind the whole as an entirety, and attach to his purpart: Williard v. Williard, 56 Pa. 119; Darlington’s Appropriation, 13 Pa. 430; Bavington v. Clarke, 2 P. & W. 115; McLanahan v. Wyant, 2 P. & W. 279; Long’s App., 77 Pa. 151. The result of such a partition does not confer a merely equitable right, but a right recognized and which will be enforced at law. Ejectment would not lie to compel payment of a sum stipulated in the nature of owelty; nor, in the absence of a contract to that effect, would a bill lie to enforce a conveyance: if the parties do not consummate the transaction by writing, it is because they chose to do otherwise.
It follows that the question whether or not a parol partition was actually made and executed, between Robert and William McKnight, was a question of fact to be determined by the jury, as other questions of Tact are determinable at law by that tribunal. There is in -all cases, at law, a preliminary question for the court, whether there is any evidence of the fact sought to be established that ought reasonably to satisfy the jury; if there is evidence from which the jury can properly find the question for the party on whom rests the burden of proof, it [373]*373should be submitted; if not, it should be withheld from the jury: Hyatt v. Johnston, 91 Pa. 196; Patterson v. Dushane, 115 Pa. 334; Cover v. Manaway, 115 Pa. 338.
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[370]*370Opinion,
Mjr. Justice Clark:
It is admitted, that Robert McKnight, Sr., in the year 1860, died seised inter alia of 174 acres of land in Antis township, Blair county, which embraced the lands in dispute, and that by his last will and testament, admitted to probate 8th January, 1861, he devised the same in fee to his six sons, John, William, Blair, Robert, Wilson, and Reuben, equally and in common. On the 16th March, 1875, when the youngest son came of age, an amicable partition of the testator’s lands was made among them in writing, by the terms of which Blair, William, and Robert took as their share of the estate the 174 acres of land already mentioned, agreeing to pay, in the nature of owelty, to their brothers Wilson and Reuben, each the sum of $750, and to John $100; the widow’s dower in the entire estate, adjusted at $420 annually, to remain a charge, payable in equal parts by all the heirs. On the 23d March, 1875, Blair, William, and Robert, by agreement in writing, subdivided their purpart, Blair taking as his share all that portion of their land lying east of the old township road, containing 96 acres 149 perches, upon which were the buildings, and William and Robert taking the balancé of the tract, lying west of the township road, containing 78 acres 148 perches; Blair assuming payment of the $1,500 to Reuben and William, and of the $100 to John, and agreeing, besides, to give to William and Robert $1,000 worth of the timber land off his tract, according to, the adjustment of three of their neighbors named. An old lane, running in a westerly direction from the township road, divided the purpart of William and Robert into two nearly equal parts. The 39 acre piece, lying north of the lane, was subsequently taken in execution at the suit of Mary McKnight, by the sheriff of Blair county, as the property of William McKnight, and at the June Term, 1884, was sold, and a sheriff’s deed dated 20th June, 1884, was executed and delivered to A. L. McCartney, who on the 15th June, 1885, conveyed to Edward Bell the defendant. The plaintiff, Robert McKnight, conceding Bell’s right to the undivided one half of the land, in the right of his brother William, claims to recover the other half.
The defendant’s contention, however, is that Robert and William McKnight, who it is conceded were originally tenants in common of the 78 acres, long prior to the sheriff’s levy and [371]*371sale, bad executed a parol partition thereof between them, by the terms of which Robert became entitled, in severalty and in fee, to the 39 acres south, and William to the 39 acres north of the lane, the latter being the premises in dispute. Whether any such parol partition was in fact executed as alleged, is therefore the principal question in the cause; for, if there was such a partition, the plaintiff has no right of recovery in this case. Upon a full hearing of all the evidence on both sides, the learned judge of the court below gave binding instructions to find for the plaintiff, and this is the first error assigned.
It is now well settled, notwithstanding what was said in Gratz v. Gratz, 4 R. 410, that a parol partition of lands between tenants in common is not a sale or transfer of lands, within the statute of frauds. If tenants in common, intending to make a partition of their lands, run a line, which is marked on the ground as a division line, and actually take possession of their respective parts in pursuance thereof, and the partition is fully excuted between them, it is sufficient to vest the title in severalty. In Rider v. Maul, 46 Pa. 376, the question was upon the effect of an alleged parol partition between Martin Jacobs and John Rider. At the trial of that case below, the court was requested, in the defendant’s first point, to charge the jury, in substance, that, if they believed that the parties had run a line, which was marked on the ground as a division fine, and had taken possession of their respective parts in pursuance of such division, the partition was executed. The learned judge refused so to charge, saying that the evidence of a parol partition or division was not sufficient to take the case out of the statute of frauds and perjuries, and, further, that the jury should disregard it altogether, and treat Jacobs and Rider as tenants in common. When the case came into this court the judgment was reversed. Mr. Justice Thompson, in delivering the opinion of the court, said: “We are of opinion that the defendant’s first point should have been answered in the affirmative. It was undoubtedly a correct presentation of the law, as a general proposition: Ebert v. Wood, 1 Binn. 216; Pugh v. Good, 3 W. & S. 56 ; Calhoun v. Hays, 8 W. & S. 127; and McMahan v. McMahan, 1 Har. 376; and there was testimony of which it was predicated, which, if true, (and this was for the jury,) was sufficient to establish an executed parol division of the land.” [372]*372When the ease came up the second time, 70 Pa. 15, there was, it is true, an intimation that, if the question was res nova, perhaps the court would take a different view, but the former ruling was permitted to stand. But whatever doubt may have arisen, from what was said in the cases cited, was dispelled by the decision of this court in the very recent case of Mellon v. Reed, 114 Pa. 649, where we said, in the most explicit manner, that “ a partition which merely severs the relation existing between tenants in common in the undivided whole, and vests title to a correspondent part in severalty, is not such a sale or transfer of title as will be affected by the statute of frauds.” The reason of this rule rests in this: that the partition is not an acquisition or purchase of land, nor is it in any proper sense a transfer of the title to land; it is a mere setting apart in severaltjr of the same interest held in common, not in other, but in the same lands. A parol partition, when fair and equal, and followed by due execution, has been held to bind even infants and femes covert; and a judgment or a mortgage or the lien of a legacy against one of the tenants in common will, after the partition, ipso facto cease to bind the whole as an entirety, and attach to his purpart: Williard v. Williard, 56 Pa. 119; Darlington’s Appropriation, 13 Pa. 430; Bavington v. Clarke, 2 P. & W. 115; McLanahan v. Wyant, 2 P. & W. 279; Long’s App., 77 Pa. 151. The result of such a partition does not confer a merely equitable right, but a right recognized and which will be enforced at law. Ejectment would not lie to compel payment of a sum stipulated in the nature of owelty; nor, in the absence of a contract to that effect, would a bill lie to enforce a conveyance: if the parties do not consummate the transaction by writing, it is because they chose to do otherwise.
It follows that the question whether or not a parol partition was actually made and executed, between Robert and William McKnight, was a question of fact to be determined by the jury, as other questions of Tact are determinable at law by that tribunal. There is in -all cases, at law, a preliminary question for the court, whether there is any evidence of the fact sought to be established that ought reasonably to satisfy the jury; if there is evidence from which the jury can properly find the question for the party on whom rests the burden of proof, it [373]*373should be submitted; if not, it should be withheld from the jury: Hyatt v. Johnston, 91 Pa. 196; Patterson v. Dushane, 115 Pa. 334; Cover v. Manaway, 115 Pa. 338.
As the case was given to the jury with binding instructions to find for the plaintiff, the defendant is entitled to have the testimony he relies upon accepted as true, together with all reasonable inferences therefrom. Referring to the testimony, we are of opinion the case should have been submitted to the jury. We will not recite the testimony, or discuss it, in detail ; as the case is to be re-tried, it is better that we should not. A reference in detail to the testimony, to exhibit the ground of this opinion, might be taken at the re-trial, if read in the presence or hearing of the jury, as an expression of our views on the questions of fact involved, and might have a misleading effqct. The view we have taken, as to the measure of proof required, will readily suggest the propriety of a submission of these questions to the jury.
The defendant offered in evidence the record of a former action of trespass quare clausum fregit, brought by him against Robert Me Knight, 18th June, 1886, in which he claimed and recovered damages for trespasses committed in the cutting of timber on the same land, after the purchase from McCartney. The pleas in that case were “ not guilty ” and “ liberum tenementum.” The defendant offered this record, to be followed by proof that the suit was between the same parties and involved the same questions as the present suit, as a bar to the plaintiff’s recovery in this ejectment. The record was admitted as persuasive evidence only, and was refused as a bar to the action. This question was raised in Kerr v. Chess, 7 W. 367, and in Foster v. McDivit, 9 W. 341, but it was in neither case decided. In Stevens v. Hughes, 31 Pa. 381, it was held, after a very able and learned discussion of the cases, in an opinion by Mr. Justice Stross, that a judgment upon a traverse of the plea of liberum tenementum, when that is the only plea, is conclusive in a second action of trespass, when the freehold of the same class is attempted to be put in controversy. But in Sabins v. McGhee, 36 Pa. 453, which is a case very similar to the present, it was held that a recovery in an action of trespass quare clausum fregit, where the only plea was liberum tenementum, is not conclusive of the title in a subsequent action of ejectment [374]*374for the same land. The rule of Stevens v. Hughes, supra, was there held to Have no application to actions of ejectment. In this case, moreover, the plea of “not guilty” renders the doctrine of Stevens v. Hughes, inapplicable, even if this were trespass.
Apart from the effect of an executed partition, we think there is no ground for an estoppel. The declaration to Allen L. McCartney was made in 1878 or 1879, long before any purchase by him was in contemplation; indeed, the judgment, which was the instrument of sale, was not entered until 1881, and there is not the slightest proof that McCartney purchased the land, relying on Robert’s statement that he owned the land on one side, and William the land on the other side of the lane, or that he was in any way thereby misled to his injury. We see no ground for a technical estoppel, but this declaration of Robert, with his other acts and declarations, were, of course, proper for the consideration of the jury.
The judgment is reversed, and a venire facias de novo awarded.