Bompart v. Roderman

Scott, Judge, delivered the opinion of the court. We are of the opinion that the court did not err in rejecting the supposed record of partition among tho-se styling themselves [399] the heirs at law of Henry Delorier, deceased. That paper contained no record of a suit at law or equity. There is no plaintiff nor defendant. The proceeding is altogether a voluntary one. The consent of the parties could confer on the court no jurisdiction to proceed in the manner it did. It is as if those concerned had made a voluntary partition among themselves. Their subsequent ratification of the proceedings could impart no-validity to them as a judicial act which they did not possess of themselves. The statute contemplates that in suits for partition there should be a plaintiff and a defendant. In all suits at common law, there must be an actor and a reus. If parties come in voluntarily and ask a court to make a partition among them, and it is done, they will stand afterwards just as they did before the court interfered, so far as a judicial sanction is concerned. Those who are competent to contract may make such partition among themselves as they please, and it will be binding but where partition is made by writ of partitione facienda, there it is otherwise ; all the tenants, or those whose rights may be affected by it, should be parties. (Coke, 180 a.)Francis Bompart had an interest in the land. He was dead. It. appears that he had heirs. Now they should have been parties.. Even if their interest was by way of remainder or reversion* they should have been. (Burnhans v. Burnhans, 2 Barb. Ch. 398.) When we see by the record that there are parties who should have been joined, but who were not, whose portions have not been allotted to them, do we not see that the whole thing.' must necessarily be erroneous; that in giving those who are1' unprovided for in the partition their shares afterwards all the previous allotments must be set aside ? As to the points that the partition was binding as a voluntary'' one without the sanction of the court, and that it was made ■ binding by the subsequent recommendation of the parties, we-are of the opinion that such a mode of making a partition will5 be binding when the parties are all sui juris and bind themselves by a proper agreement. Had the agreement been relied: [400] on, the original should have been produced, and the handwriting of the parties proved. A copy of the agreement found in the record was not evidence. It was not under seal. It could not therefore pass title. It would only amount to an agreement to convey. Whether the paper signed imported an agreement whose specific performance would be enforced by the decree of a court, we will not determine. Nor do we say whether the recommendation related to both the real and personal estate, •or to the personalty alone. In the next place, the signatures show that it is not a binding agreement upon all interested. Celeste Roderman’s husband was no party to the proceeding • otherwise than by signing the paper expressing the satisfaction of the parties thereto with the report of the commissioners, and recommending its approval to the court. How would Mrs. Ro-derman’s signature affect her rights ? Could she convey away fher interest in lands otherwise than by pursuing the mode prescribed by law for alienating her real estate ? Charles Roder-jnan having signed it, it would be binding on him as to his life •estate or curtesy in his wife’s land ; but we do not see how it • could be made binding on her. The paper too is signed by Emilie Bompart, who was the wife of Louis Bompart. It is •not signed by his heirs. Her signature would not bind the .'heirs, or in any way affect their rights. The principle that a parol partition, followed up by possession, will be valid and sufficient to sever the possession, is only applicable to those cases where there is a title and it is admitted to be in common ; that is, where the parties are admitted to have a title, and are joint tenants or tenants in common with respect to it. In such a case there can be no question of title. The dispute can only be whether the limits of each one’s possession have been settled. If they have been, there is a valid partition when possession has followed the adjustment. Very different is the case where the title of those setting up such a tenancy in common is denied. There the partition of itself can confer no title. It, together with adverse possession for twenty years, or with such acts and conduct on the part of those as [401] serting the invalidity oí partition as would create an estoppel in pais or otherwise, might give title or protect the possession. (Jackson v. Vosburgh, 9 Johns. 275.) Here the title of the party setting up the partition is wholly denied, and no bar is shown by lapse of time, nor any facts or circumstances which would create an estoppel. The deed from Roderman and wife can have no such effect. At most it is nothing more than an admission by them that there had been a partition. It is to a third person, and if it creates an estoppel, it is only between them and the person to whom the deed was executed and those claiming under it. Roderman’s admission that a partition had been made, does not pass away his title, no more than an admission by one that he had conveyed away his land would be evidence of the fact. Lands must be conveyed in pursuance to the statute of frauds. In the case of Jackson v. Sherman, 6 Johns. 21, it is said, “ these acknowledgments of the party as to title to real property are generally a dangerous species of evidence, and, though good to support a tenancy or to satisfy doubts in cases of possession, they ought not to be received as evidence of title ; this would be ¿o counteract beneficial purposes of the statute of frauds.” If, as was insinuated, there was an agreement between the heirs of Mrs. Delorier by Bompart, and those by Delorier, that the lands inherited from their respective parents should form a joint inheritance to be equally divided among them, we would suppose that if the heirs on the part of Delorier deny to the heirs of Bompart any portion of their inheritance, then they would be prepared to yield up any interest they may have received in the inheritance of the Bomparts. We do not see why they may not be compelled to this. But we will not go into this matter, as the record is silent in regard to it. Judge Ry-land concurring, the judgment will be affirmed; Judge Leonard absent. Footnotes [*] Leowake, ¿fudge, by reason of indisposition, was necessarily absent dar-dng idle greater part of this ¡term, and .consequently sat at the hearing of hut Sfew cases. — £ Rep.