Ryerss v. Wheeler

Headnote

A parol partition of lands, followed by a possession and occupation in conformity to it, for a period of 30 years, is valid and operative.

And in an action against a stranger to the title, such partition will he enforced, although made by the grantee of a tenant by the curtesy, (the title of the wife not having passed by reason of a defect in the execution of the deed); during the continuance of the life estate, partition is good,

A plaintiffi in ejectment is permitted to retain a verdict in his favor, although on the trial he proved title to only an undivided part of the premises, when in his declaration he claimed the whole. He will, in such case be permitted to amend.

This was an action of ejectment, tried at the Yates circuit in June 1840, before the Hon. Daniel Moseley, one of the circuit judges.

The fifth count of the declaration stated that John P. Ryerss [ *435 ] and Daniel Pierson and Margaret his ivife, on the “first day of July, 1836, were possessed of 50 acres of land, part of lot No. 26, in the subdivision of lot No. twenty-three, in a certain tract, particularly describing the 50 acres by metes and bounds, in which Ryerss, and Margaret, the wife of Pierson, claimed a fee, and Pierson, in right of his wife, claimed a life estate, as tenant by the curtesy, and being so possessed, the defendant, Wheeler, entered and ejected them. The seventh count of the declaration was substantially like the fifth. The defendant pleaded non cut. After the commencement of the suit, Ryerss died, and his heirs at law were made parties.

On the trial the plaintiffs showed title in JEleazer IAndsley to lot No. twen. ty-three; and that he, in February, 1794, conveyed an equal undivided moiety of lot No. 26, in 'the subdivision of No. 23, to dozen Reyerss. Grozen Ryerss died in 1802, leaving two children, viz. John P. Reyrss and Margaret, the wife of Daniel Pierson. JEleazer IAndsley died leaving two sons and five daughters, his children and heirs at law ; four of the daughters married. In 1801, the two sons, three of the married daughters, with their husbands, and one daughter, who was a single woman, united in a deed convey

ing their interest in lot No. 26 to Stephen Hopkins, the husband of the fourth married daughter: this deed was not acknowledged by the three married daughters of Lindsley, so as to pass their interest in the land. In 1805 Hopkins and his wife conveyed the one-half of lot No. 26 to Sylvanus Travis. It was then shown that as long since as 1810, a line was established dividing lot No. 26 into two parts, designated as the north and south parts of the lot; and that the north part was occupied by Travis, and the south part by Ryerss, each recognizing the division line as the boundary of their respective portions of the lot, and that the possessions had been since that time continued in conformity to such division. The plaintiffs having rested, the defendant moved for a nonsuit on the ground that the plaintiffs had failed to prove title in themselves, as claimed in the several counts of the declaration, or in any one of such counts, inasmuch as the three married daughters of Lindsley, who had not acknowledged the deed conveying the premises to Hlopkins, were entitled to three-sevenths of the [ *436 ] moiety of lot No. 26. The defendant also insisted that the interest of those three daughters not having passed to Hopkins, the parol partition between the grantee of Hopkins on the one part, and Ryerss on the other, was invalid and inoperative. The motion was denied by the circuit judge, and the defendant excepted. The jury, under the charge of the judge, found a verdict for the plaintiffs, which the defendant moved to set aside.