
    THOMAS P. DEVEREUX vs. HENRY K. BURGWYN & AL.
    A right can only be lost or forfeited by such conduct as would make it fraudulent and against conscience to assert it.
    If one acts in such a manner, as intentionally to make another believe, that he has no right, or has abandoned it, and the other, trusting to that belief does an act, which he would not otherwise have done, the fraudulent party will be restrained from asserting his right; unless it be such a case, as will admit of compensation.
    The case of Albea v. Griffin, 2 Dev. & Bat. Eq. 9, cited and approved.
    Cause removed from the Court of Equity of Northampton County, at the Fall Term, 1848.
    The parties, being entitled as tenants in common to many valuable tracts of land in the counties of Halifax and Northampton, in February 1840, came to an agreement, for a division by which the plaintiff, who was entitled to one moiety, should take the land in Halifax, with certain exceptions ; and the defendants, who were entitled to the other moiety, should take the land in North* ampton, with certain exceptions. The several tracts of land taken by the parties respectively are set forth in the pleadings.
    In pursuance of this agreement the parties took possession, and have retained possession ever since, claiming the parts so taken into possession, respectively as their own in severalty. The plaintiff has greatly improved his part, by the erection of necessary farm buildings, making dikes and ditches, and a good course of husbandary. Some of the defendants have sold the shares or parts of the shares allotted to them in a subdivision, which they made among themselves, and the defendant Henry K. Burgwyn has, like the plaintiff, greatly improved the value of his shares, by the erection of suitable buildings, the application of manure and lime, and by a judicious rotation of crops.
    The agreement, in pursuance of which the division was made in 1S40, did not fix the value of the respective lots. A valuation, which had been made by Mr. Britton, was considered sufficiently certain to enable the parties to make the division ; but not sufficiently accurate to form the basis of a definite valuation. To fix his definite valuation, the parties on the 20th of April 1S40, entered into an agreement which recites that a division had been made, and the parties thereby agree that a valuation shall be made by Mr. Britton, and Mr. Smith, “if either of the parties refuse to abide by the valuation made by Britton and Smith, the party refusing, shall pay to'the other party, the sum of $1000, as stipulated damages, and not as penalty.” Britton and Smith on the 23d of of June 1841, made a valuation, by which the share allotted to the defendants is valued at $77,030 — and the share allotted to the plaintiff at $77,760, showing an excess of of 388 24 in the value of the share of the defendants, which sum the defendants are to pay to the plaintiff with interest from the 1st of January 1841, for equality of par-? tition.
    The parties were notified of this valuation. The plaintiff promptly agreed to abide by it. The defendants did not agree to abide by it, nor on the contrary did they in so many words refuse to abide by it, although they alleged that the share of the plaintiff had been valued much too low, and avoided giving a definite answer.
    
      The main purpose of this bill is, to set up and establish the division made in February 1840, and since acted on. The defendants agree that the division shall be established.
    Another purpose of the bill, is to have a specific performance of the agreement, in reference to the valuation made by Messrs. Britton and Smith, and for the payment of the $8S 24. The plaintiff admits, that by the agreement, in reference to the valuation made in April 1840, that valuation was not to be conclusive, but that either party had the right to refuse, subject to the payment of the $ 1000, as “stipulated damages.” The plaintiff also admits, that, in .consequence of the non age of Sarah, one of the defendants, he submitted to the delay on the part of the defendants, and their evasion to give a definite answer, one way or the other, until the Spring of 1844, when Sarah arrived at full age, but that, after that time, the defendants still evaded giving a definite answer; and he, therefore insists, that they have lost or forfeited their right to refuse, to abide by the valuation of Messrs. Brit-ton and Smith, especially, as, in consequence of the improvements he has made, it will now be very difficult to ascertain the value of the land in February 1840, when the division was made; and he would, for that reason, he prejudiced by any valuation that can now be made.
    The defendants, in their answers, distinctly refuse to abide by the valuation of Britton and Smith. They allege, that the valuation was made under such circumstances, that a Court of Equity should not decree a specific performance, if there were no other considerations bearing upon the question ; but should leave the plaintiff to his remedy at law. where they are advised he will likewise be unable to effect a recovery. They further allege, that, by the agreement, under which Britton and Smith acted, the parties expressly reserved the right of refusing to abide by the valuation ; and that they have done nothing to , give the plaintiff ground to insist, that they have lost or forfeited this admitted right: That the delay from June, 1841, to the Spring of 1844, is reasonably accounted for, and so admitted to be by the plaintiff, on account of the non-age of the defendant Sarah : that from that time up to the filing of the bill, only a period of about nine months, a delay was necessary, because they lived at remote distances from each other, and had not an opportunity of consulting and fixing upon the course to be taken ; but that they had determined upon filing a bill against the plaintiff in the Fall of 1844, and were making preparations to do so, when informed of the intention of the plaintiff to sue : that by Brilton’s first valuation the plaintiff’s lot was valued at $117,000, and their lot at $102,000, making a difference of $15,000 in their favor ; whereas by the last valuation, the plaintiff's lot is valued at $77,760, and theirs at $77,936, making a difference of $88 24 in the plaintiff’s favor. This difference in the result, they allege, is so enormous and unaccountable, that the plaintiff could not for one instant have supposed, they did not intend to avail themselves of their right to refuse to abide by it. They have not at any time given the plaintiff any reason to believe to the contrary : nor did the plaintiff ever give'them notice, that he should look upon á failure on their part to refuse positively to abide by the valuation, as a forfeiture of their right, even supposing he had a right to have put them upon those terms ; and that the plaintiff was not induced to make the improvements, he alleges he has made, because he supposed the valuation was fixed, which is a minor point; but because he knew that the division was fixed, which was the main object and which they do not wish to disturb ; in fact, that theplaintiffhad commenced and was carrying on his improvements, before the valuation was made, and has continued to do so, since the filing of the bill.
    
      
      P. W. Winston, Badger and B. F. Moore,, for the plaintiff.
    
      J. H. Bryan, W. N. H. Smith and McRae, for the defendants.
   Pearson, J.

Upon the main point, we are relieved from all difficulty by the agreement of the parties. The division as made in February 1840, and recited in the agreement dated 20th April, 1840, will be established.

Upon the other point, as to the valuation, we are relieved from the necessity of putting a construction upon the agreement, because the parties agree, that under that instrument each party had the .right to refuse or to abide by the valuation, subject to the payment of the “stipulated damages.” The case then is namnved down to the single question : have the defendants acted in such a manner, as to have lost or forfeited this admitted right ?

A right can only be given up by the consent of the party, evidenced by a release. A right can only be lost or forfeited by such conduct, as would make it fraudulent and against conscience to assert it. If one acts in such a manner as intentionally to make another believe that he has no right, or has abandoned it, and the other, trusting to that belief, does an act, which he would otherwise not have done, the fraudulent party will be restrained from asserting his right, unless it be such a case, as will admit of compensation in damages. If one stands by, or allows another to buy property, to which he has the title, he will not, on account of this fraud, be permitted, in a Court of Equity to assert his title. Sasser v. Jones, Sire. Eq. 19, is an instance of a right being lost in this way. If one allows another to make improvements upon land, belonging to the former, he is not permitted in equity to assert his title to the land, and take the benefit of irpprovements, innocently made by the other, without making compensation. Albea v. Griffin, 2 Dev. & Bat. Eq. 9.

But the proof falls very far short, in this case, of making out a state of facts, whereby the defendants should be deemed to have lost or forfeited their right. There was no intention to deceive. True, the defendants evaded giving a direct answer, not for the purpose of deceiving, but evidently for delay and to put off a controversy as to the @1000 stipulated damages. The plaintiff was not deceived. There was nothing to lead him to suppose, that' the defendants intended to abide by the valuation. The plaintiff did no act which he would not otherwise have done. In fact, the plaintiff does not allege, that he was deceived. He complains very properly, that, instead of giving him a direct answer, the defendants failed to do so, from time to time, and his only course was to apply to a Court of Equity, as he has done ; where they would be j’equired to decide one way or the other. The defendants have not made it necessary to be required by the Court to do so, because in their answers, they expressly refuse to abide by the valuation, and the plaintiff, now has his remedy at law open to him. If a mortgagor, who has a right to redeem, neglects to make payment or evades answering, whether he intends to redeem, or expects to have it in his power to do so, although this state of uncertainty is kept up for yeai's, the mortgagee cannot say, that the right of redemption, is lost or forfeited. He must go into a Court of Equity to foreclose, and the Court will require the mortgagor to redeem, in a reasonable time. This is common learning.

There must be a decree, establishing the division, as made in February 1840, and recited in the argument set out in the pleadings.

There must be an order for a valuation of the respec-. tive shares, by commissioners. The valuation to be put upon the land, as in February 1840, when the division was made, and the parties took possession; and the excess in the valuation for equality of partition, will bear interest from the 1st of January, 1841, since which time the parties have been in possession, and in the receipt of the profits.

Per Curiam.

Decree accordingly.  