
    Black versus Tyler et al.
    
    A. plea in bar to a petition for partition, that A., tenant in common with the ie spondents, conveyed to the petitioner, and that the petitioner, at the same time executed to the respondents a certain instrument or writing by him subscribed (not under seal,) reciting, “ whereas A. has conveyed, &c., in consideration whereof, I promise B. and C. (the respondents), that I will hold and improve the same in common with them during the life of D.,” with an averment that I), is in full life, was adjudged bad upon demurrer.
    Petition for partition. The respondents plead in bar, that Aaron Brooks, tenant in common with the respondents for three fifth parts of the premises described in the petition, on, &c. executed to the petitioner a deed of the three fifth parts, and that the petitioner at the same time executed to the respondents, “ a certain instrument or writing by him subscribed, of that date, in which it is recited as follows, to wit : — Whereas Aaron Brooks has this day conveyed, &c., in consideration whereof, I promise said Tyler and Davis, their heirs and assigns, that I will hold and improve the same in company with them, during the life of Mary Ruggles, on fair and honorable terms, accounting to them for two fifths of the rent and profits of said estate in case I occupy and improve the whole of the premises;” and the respondents aver that the premises, &c. are the same, &c., and that Mary Ruggles is still in full life. The petitioner demurs generally to this plea.
    Lincoln, in support of the demurrer.
    The contract for the conveyance of the land was between the petitioner and Brooks • there is nothing to prevent the respondents obtaining partition without the assent of the petitioner. No privity, either of contract or estate, exists between Brooks and the respondents.
    The writing pleaded is void for want of consideration. The petitioner promises to hold in common with the respondents, hut they do not agree to permit him so to do. The agreement "3 all on one side. Jackson v. Florence, 16 Johns. Rep. 47. 1: is void for uncertainty. The words fair and honorable are indefinite in their signification, and there is no standard nor any tribunal appointed, by which they can be reduced tc certainty. Bac. Abr. Grant, H; Worthington v. Hylyer, 4 Mass. Rep. 196. It is void for repugnancy. The petitioner promises n occupy the premises on honorable terms, and be is still at liberty to occupy or not. Bac. Abr. Grant, I.
    
    
      J. Davis, for the respondents.
    The plea is a good bar. It was supposed, that it would be advantageous to the respondents that the land should continue to be held in common, and the petitioner, in consideration of the conveyance, agreed to hold in common. The consideration was sufficient, though the benefit of the agreement was to inure to the respondents, who were not privies to the deed of conveyance. The writing pleaded may be viewed as an agreement not to sue any process of this kind during the life of Mary Ruggles. The deed and the agreement may be considered as parts of one contract, and are to be construed together. The question will then be, what was the intention of the parties. Clark v. Munroe, 14 Mass. Rep. 351. The case of Burgh v. Preston, 8 D. &E. 483, is much like the one before the Court. There, to a bond was annexed a memorandum, in which the obligee undertook not to bring a suit upon the bond until after the death of Preston. The plea was, that Preston was living. Lord Kenyon held, that the memorandum was a part of the condition of the bond. So, here, this writing was a condition of the deed, and an agreement that the petitioner would hold in common.
    In another view of the subject, this writing operates as a release of the right to bring process for partition, during the life of Mary Ruggles, and may be pleaded in bar. In Sewall v. Sparrow, 16 Mass. Rep. 24, an instrument not under seal was pleaded as a release of a judgment. [Parker C. J. That case was determined on the ground of a particular statute, and not on the general principles of the common law.] The Court will give this effect to the writing in the present case, in order to prevent circuity of action. The reason for the superior solemnity of sealed instruments has ceased.
    The remarks about uncertainty and repugnancy are unfounded. The agreement divides itself into two branches, one, that the petitioner will hold in common, on fair and honorable terms, that is, that he will not procure a partition; the other, that if he actually occupies the land, he will account for rent; and this removes the repugnancy.
   Per Curiam.

The Court are of opinion, that the' plea m , oar is insufficient. This opinion is not grounded on the wart of consideration, uncertainty or repugnancy of the writing set forth in the plea ; but supposing that the respondents can maintain an action upon the contract, the question yet remains, whether the contract can be pleaded as a bar to the petition for partition. A case occurred in the State of Maine, in relation to a wharf, in which a similar agreement was pleaded. The Court, after consideration, held that it was no bar. This was before we had books of reports. The contract here not being under seal, it cannot affect legal rights to real estate, whatever might be its operation as to personal property. To be pleaded as a release it ought to be under seal; though a man may be rebutted by an agreement in writing merely, and perhaps by a paroi agreement, in order to prevent circpity of action; and that is where the same rule of damages would govern. But this doctrine is inapplicable to the present case. What would be the amount of the damages for a breach of the contract, we cannot say ; they would, however, be in money ; but here is a claim to hold land in severalty. We know of no principle in law to prevent the petition from being allowed, though in a court of equity the party might perhaps be held to his agreement.

Plea adjudged bad.  