
    DECEMBER 14, 1803.
    J. and A. Tucker v. E. Tucker’s Representatives.
    
      Upon an appeal from a decree of the Court of Quarter Sessions of Bourbon county.
    
    1. Where one of two tenants in common, who is in possession, pays the whole) or more than his proportion of the purchase money for the land, his co-tenant can not have severance of the title, and possession of his moiety, without first paying his proportion of the purchase money.
    2. Where the deceased ancestor had made a verbal gift of a tract of land, for which he had not paid, to one of his sons, and put him in possession, and the son had paid for the land — Held: That a court of equity would not compel the donee to make partition of the land with the other heirs of the donor.
   The court below undoubtedly erred in decreeing for the complainants in that court without compelling them to contribute their proportionable parts of the money which the defendants had paid for the four hundred acres of land in contest. But there is the most satisfactory testimony that their ancestor, under whom they all claim, gave this land to these defendants, and had for a considerable time acquiesced in their taking and retaining possession of it. The only defect is, that he did not, by deed or will, invest them with the legal right under which he held it. By paying the purchase money due to the original holder, they have, however, acquired the legal right, and this court does not know of any equitable principle by which they can be divested of that right.

Wherefore, it is decreed and ordered, that the said suit be remanded to the circuit court for the county of Bourbon, that it may dismiss the said complainants’ bill and enter up a decree that they pay unto the defendants their costs expended in that court and the said court of quarter sessions, which is ordered to be certified to the circuit court of Bourbon county.  