
    *Clark v. Nunn & Wife.
    Absent, Staples, j.
    
    June Term, 1874,
    Wytheville.
    The broad language of a contract in relation to the division of land between the joint owners, restricted in its construction, in view of the surrounding circumstances and the previous action of the parties.
    Fugate Clark died in 1826, having made his will, by which he gave to his widow one-third of all his real and personal estate after the payment of his debts; and after some small legacies, he directs the balance of his personal property to be equally divided among his eight children, and the lands equally divided also: “The residue of my property, which I give to my wife, at her death I wish equally divided. ’ ’
    Charity, one of the daughters of Fugate Clark, married William Nunn; and he purchased one-half the interest in the estate of Rachel, another daughter; and Randolph Clark purchased the other half of Rachel’s interest.
    Fugate Clark owned two or three large tracts of land; and in a suit instituted for the purpose in 1841, commissioners were appointed to divide a part of the lands among the devisees, Nunn and wife and Randolph Clark, and to lay off the one-third for the widow. The commissioners met on the land for the purpose, when Nunn and Randolph Clark agreed *'upon a division between themselves, which was reduced to writing and signed by them. This agreement recites that Nunn claims an interest of one eighth and one sixteenth in the tract of land on which Fugate Clark, deceased, formerly resided, and Randolph Clark claims the residue of said lands, except the widow’s dower; and it is agreed that William Nunn shall have'two pieces of land on the northwest side of the survey, one of which contains one 'hundred and sixty-seven acres, and the other five and a half acres; and they are described by metes and bounds. The said Randolph Clark binds himself, his heirs, &c., to relinquish to Nunn, his heirs, &c., all his claim, right or title to the above described lands. The said Nunn, on his part, agrees for himself, his heirs, &c., to relinquish to the said Randolph Clark all the claim, right or title he may have in and to the said tract of land on which said Fugate Clark, deceased, resided, as well as to all the lands belonging to the estate of the said Fugate Clark adjacent thereto.
    A few days after this agreement, the widow’s third of the land was laid off to her, embracing three hundred and ninety acres of the above mentioned tract; and she occupied it until her death in 1857. During her life Joseph Clark, another son of Rugate Clark, deceased, purchased the interests of all the heirs, except that of Nunn and wife in the third of the land held by the widow; and upon her death he and Nunn and wife agreed upon a division of it upon the basis that they had three sixteenths and he owned the remainder of it; and though there was no deed of partition between them, each party took possession and held the part assigned to him until Joseph Clark’s death. In 1866 Joseph Clark died unmarried and intestate. And in April 1869, Nunn and wife instituted *a suit in equity to have the division aforesaid confirmed, and to have partition of the land of which Joseph Clark died possessed. Randolph Clark answered, and insisted that by the agreement between Nunn and himself, Nunn had released to him all the land on which Rugate Clark had resided, including the land afterwards assigned to the widow. The construction of this agreement is the only question in the cause, and the surrounding circumstances bearing upon that question are stated by Judge Anderson in his opinion.
    The cause came on to be heard upon the 21st of April 1869, when the court held that the plaintiffs were entitled to the three sixteenths of the land as claimed by them, and confirmed the division made by them and Joseph Clark. And commissioners were appointed to make partition of the land of which Joseph Clark died possessed. And thereupon Randolph Clark applied to this court for an appeal; which was allowed.
    J. J. Wade, for the appellant.
    J. A. Walker, for the appellees.
    
      
      He bad been counsel In the cause.
    
   ANDERSON, J.

delivered the opinion of the court.

This is a bill brought by William Nunn and wife for the partition of the lands of which Joseph Clark dies seized amongst his heirs-at-law, of which they are entitled to one-sixth,, and which are part of a tract of three hundred and ninety acres, which had been assigned to the widow of Rugate Clark for and during her life, and which were at her death to be divided amongst his eight children, of whom the female plaintiff was one. The bill alleges that the plaintiff, William *Nunn, had purchased the half of one other share in reversion, which entitled the plaintiffs to three sixteenths in the reversion, and that the residue of the shares had been purchased by Joseph Clark, the brother of the female plaintiff, and of the defendants, who died intestate and without issue; and that they and the said Joseph had made a parol partition after the death of the widow, and their three-sixteenths were laid off to them by metes and bounds, of which they had held the exclusive possession ever since; and they ask that the same may be confirmed.

The appellant, Randolph Clark, who is also ‘a brother of Joseph Clark, deceased, objects to the confirmation of said partition, denies the right of the plaintiffs to said three-sixteenths, and claims the right to the same himself under a contract made with the plaintiff, William Nunn, on the 16th of June, 1841, which he exhibits with his answer. On the 21st of April, 1869, the Circuit court of Pulaski county pronounced a decree, adjudging the plaintiffs to be entitled to the said three-sixteenths, and confirming the partition which had been made between them and Joseph Clark, deceased, from which decree the defendant, Randolph Clark, appealed to this court.

The case turns upon the construction of the said contract of June 16th, 1841, and the question is, was it the intention and design of the parties to make partition of their interests in the reversion, expectant upon the termination of the widow’s life estate therein, or only of their interests in'possession in the real estate of Rugate Clark, deceased. The contract is very inartificially and awkwardly drawn, and is by no means clear and explicit, and should be construed in the light of the surrounding circumstances.

It seems that at the time it was entered into, there *was depending in court a proceeding instituted by William Nunn, or the plaintiffs, to have laid off and assigned to them their shares in the real estate of the said Rugate Clark, deceased, and that three commissioners had been appointed by the court to lay it off. The record of that proceeding is not exhibited with this record. But it is evident that it could not have been designed to lay off their interest in that part of the estate which was to be assigned to the widow, and which was assigned to her a few days after the date of this contract; because by the .terms of the will, it was not to be divided until after the death of the widow.

The commissioners, it seems, had met upon the ground to lay off to the plaintiffs their interests in the real estate, not including their interest in the reversion, when the contract in question was entered into, by which the parties themselves agreed how it should be laid off; and two parcels were laid off to them by metes and bounds, amounting together to one hundred and seventy-two-and-a-half acres. Afterwards, three hundred and ninety acres were laid off and assigned to the widow, not including any portion of the one hundred and seventy-two-and-a-half acres which had been laid off to the plaintiffs. The inference would be, that the allotment made to them was exclusive of their interest in the dower, which was not subject to partition, by the purport of the will of Rugate Clark, until after the death of the widow.

And this construction is confirmed by the conduct of the parties, by their acts and declarations. On the 22d of April 1843, about two years after this contract was made, Randolph Clark united with his brothers Reuben and John in a conveyance of their interests in the reversion to Joseph Clark, which they describe as being three-eighths and one half-eighth. Reuben had *previously purchased the one-half of his sister, Rachel, which gave him three-sixteenths, he being- entitled, under the will of his father, to one-eighth, which left to each of the other grantors, Randolph and John Clark, in the interests conveyed one-eighth ; which cannot be otherwise construed than as a solemn acknowledgment by Randolph Clark, inferentially, that he at that time, did not claim the appellees’ interest in the reversion. If he had then claimed their shares, under the contract in question, his interest would have been two-eighths and a half, instead of only one-eighth. We regard this act of the appellant, two years after he entered into the contract in question, as a construction upon it which repels that which he now gives to it. It is the evidence of cotemporaneous construction by the party, who, long years afterwards, seeks to avoid it. On the other hand, the plaintiffs, the appellees here, have ever maintained that they did not intend to part with their interest in the dower land. And the possession has ever been consistent with their construction of the contract, from the time it was entered into, down to the filing of appellant’s answer in this cause ; a period of exactly twenty-six years to the day. And the rights of the appellees were recognized and acknowleged by the owner of all the other interests in the reversion, from the termination of the life estate to the day of his death. Upon the whole, the court is of opinion that there is no error in the decree of the Circuit court, and that the same be affirmed with costs and damages to the appellees.

Decree affirmed.  