
    CHARLESTON.
    Parr vs. Haymond, et. als., Nathan Parr, Plaintiff and Appellee, against Spencer H. Haymond and Others, Defendants and Appellants.
    Decided February 25, 1873.
    Syllabus.
    "W., by bis -will, devises a tract of about three hundred and seventy acres of land “tobe equally divided in value between his ten heirs, so that each one’s part should be adjoining his lot described; or as near so as circumstances will allowwill proved in 1837.
    In 1859, P. flies his bill for a partition of said land. To this bill several parties interested in said land, either as devisees or purchasers, file their joint answer, alleging that partition had been made of said land in 1841, by mutual agreement of the then owners of the same, the lines of division marked out, and that all the owners had acquiesced therein, although no deeds of partition had been executed therefor, and claiming that said partition should not now be disturbed. Proofs were taken, but the same not being sufficient in the opinion of the Court below to sustain the answer, the Court directed the surveyor of the county to partition said land according to the directions of the wTill; this was done and report made to the Court; no objections being made thereto on account of any inequality or injustice in the allotments therein reported, the report ivas confirmed, and deeds ordered to ho made, by the parties respectively. Prom this order and decree an appeal is taken to this court.
    Held, That there is no error in the decree of the Court below.
    
      Hutchinson for 'Appellants.
    
      J. H. Brown for Appellee.
   Paull, Judge.

This suit was instituted in 1859, for a partition of a tract of about 350 acres, known and called the hack land,” being part of a large tract of land devised by the will of John Warth to bis children in the year 1837; this part of said land, the bill alleges, never was partitioned among the devisees of said Warth, although, directed by said will to be equally divided in value between them, so that each ones part should be adjoining-his lot, or as near to as circumstances will allow. Some-of the Defendants, who are purchasers from the devisees,, answer the bill, alleging that an agreement was made by the parties interested in said land, and signed by themi on the 22d day of January, 1841, by \%rtue 'of which this particular tract was surveyed, laid off, and allotted' to said parties respectively; that these allotments were-accepted, and the respective portions occupied by the; parties, and the division thus made has been acquiesced, in by the parties, or their assignees for eighteen years,, and should not now be disturbed. These Respondents,, with the exception of Isaac Tavner, are all strangers to-this agreement, and not parties, and not originally interested in this land; and although deriving their information from sources deemed by them perfectly reliable, the answer does not seem to be fully or sufficiently sustained by the proofs; there does not seem to have been an acquiescence in this arrangement, a partition by all th e devisees, and no deeds of partition were ever exec uted by them in pursuance thereof, and actual posses-ion not taken. It is manifest from the record that continual controversies are liable to spring up between tbe parties interested in. this land, whether by devise or purchase, the partition heretofore claimed to .have been made not resting upon a staple and permanent basis, such as the deeds of the parties or the decree of a court. The question as to the consent or acquiescence of the parties in this supposed partition, is always liable to arise, and resort can only be had to parol proof to sustain or defeat it. The Court below directed the surveyor-of the county to enter upon this land and lay off the same with reference to the said front lots according to the will of the testator. This was done; a survey and division of this land was accordingly made, and a report thereof returned to the Court. Upon consideration whereof, and of all the proceedings and proofs in the cause, the Court being of opinion that the division of said land so reported is as near in accordance with the directions of the last will and testament of the testator as circumstances will allow, confirmed said report and decreed that the parties hold and own in severalty thereafter the portions respectively allotted to them, and that they release and convey to each other accordingly.

It is claimed that the supposed partition made by the divisees in 1841 was connected with another portion of land, in regard to which a certain and definite arrangement was made between them, and that the agreement of January 22, 1841, contemplated that this particular tract of 350 acres should be partitioned at the same time, and that injustice will now be done if that supposed partition is disturbed. That agreement does not connect these parcels of land together in that aspect, nor does it sufficiently appear from the evidence that the absence of any such partition has or will result in any injustice to the parties.

No complaint is anywhere made that the division and partition of said land bv the Circuit Court in its decree of December, 1869, are unequal, unjust or inequitable to the parties interested, and no sufficient error appearing in the proceedings from the record in this case, said decree is affirmed with damages and costs to the Appellant according to law.

HaymoND, President, and HoNKMAN and Mooee, Judges, concur in the above opinion.  