
    Richmond.
    Stubblefield v. Beazely.
    1. Two persons unite to purchase a tract of land, for which they give 3000 dollars; and they enter into a contract, under seal, by which one of the parties is to pay 2000 dollars, and the other 1000 dollars of the purchase money, and the land is to be divided equally between them. Held : Each is to have a moiety of the land.
    2. Quare. If parol evidence is admissible to explain what is meant by the equal division provided for in the contract ?
    This was a suit brought in the Circuit Court of Middlesex, by Thomas M. Stubblefield against John Beazely, for the division of a tract of land conveyed to them jointly by John P. Turner. The parties united in the purchase of the land from Turner for 3000 dollars, and at that time they entered into a written agreement, under seal, by which they covenanted with each other to unite as copartners in getting the wood and lumber from the said tract of land, and to divide equally the profits arising from the sale thereof. That Beazely was to pay two thousand dollars of the purchase money, and Stubblefield was to pay the remaining thousand; and that the land was to be equally divided between them, by a line commencing on the upper boundary of the land and running to the Dragon swamp; Beazely to take his portion on the south or lower side of said dividing line. And it was further agreed between the parties that should either wish to get lumber more extensively than the other, he should be at liberty to do so out of the timber on his own portion of the land.
    Although to engage in the lumber trade appears to have been the primary inducement to the purchase of the land, especially on the part of Stubblefield, yet that scheme was abandoned immediately.
    
      Stubblefield in his bill insisted that the land was to be divided between them in equal shares. Beazely in his answer contended it was to be divided in proportion to the amount of the purchase money which each had paid. Parol testimony was introduced by both parties. Turner, who sold the land, and who was a subscribing witness to the agreement between Stubblefield and Beazely, says: That much conversation passed on (he subject of their agreement both before and after the purchase from him, but that nothing was said which conveyed the impression to his mind that Stubblefield was to get half the land; and that from these conversations he certainly understood that the land was to be divided in proportion to the amount which each paid. That it was fairly understood that Beazely was to have the dwelling-house ; and that if the land is divided into equal parts, in the mode agreed upon at the time and embraced in the agreement, the house will not be on his part of it; though it would be if he got two 'thirds of the land. Another witness, Henry P. Montague, who was present at the time the purchase and agreement were made, says: He heard the agreement, and understood Beazely was to take two thirds of the land, and pay two thirds of its value, and Stubblefield was to take one third of the land, and pay one third of its value ; and this he heard said by both Stubblefield and Beazely. Another witness, Samuel R. Medlicott, said, that he went with Stubblefield to Turner’s at the time he bought the land in question, to see whether there was a stream running through it on which a sawmill might be built. They found none, and then Stubblefield told him that he thought he would not take the land. After this, Stubblefield had a conversation with Beazely apart from the company, and returned to the witness and told him that Beazely had proposed to him that if he would buy the land he would give him 2000 dollars for half of it. Witness thereupon advised Stubblefield to take the land, and he in a few minutes told Turner he would take it. Beazely was standing near when Stubblefield 
      told witness what he proposed, but witness could not say whether Beazely heard what was said ; but from the conversation during the day, the witness thought the understanding was perfect, that Beazely was to have but half the land. Another witness, Erastus T. Montague, the person who drew the agreement as well for the purchase of the land, as that between Stubblefield and Beazely, said : That at the request of these parties he went with them to Turner's on the day they purchased the land. That previous to seeing Mr. Turner, they expected to give 3500 dollars for the estate; and whilst under that impression it was agreed between them that Beazely should pay 2000 dollars, and Stubblefield 1500 dollars; and that they should equally participate in the benefit of the purchase : That they would as soon as practicable engage in the lumber business: That Beazely was to attend to the getting the lumber, and Stubblefield was to sell it. That Stubblefield spoke of his northern correspondence as giving him advantages in selling the lumber that no one else about there possessed ; and inasmuch as the acquisition of these advantages had cost him more than 500 dollars, he required that much advantage in the contract. Witness understood Beazely to acquiesce fully and entirely in this understanding and agreement. When it was ascertained that the land could be bought for 3000 dollars, Stubble-field insisted that Beazely should still pay the 2000 dollars, and leave him to pay the 1000 dollars, alleging if Beazely bought alone he would have to give the 3500 dollars. That witness and Turner advised Beazely to take the whole purchase on himself, alleging he was giving entirely too much for the benefit of a partner; but he declined it, saying he did not like to go further in debt than he could see his way through; and that as Stubblefield only wanted the timber, he could, when he became able, purchase from Stubblefield. Witness when he had prepared the agreement handed it to Stubblefield, who, when he had read it, remarked that an important word was omitted, and himself inserted the word “equally.” Witness then read the agreement aloud, and enquired of the parties whether it embraced their views; they said it did, and proceeded to execute it.
    The cause came on to be heard in March 1840, when the Court made a decree appointing commissioners to divide the land, allotting to Beazely two equal third parts, taking into consideration the quality and improvements as they were in September 1835, when the agreement was made, as well as quantity, and to Stubblefield the other third part. From this decree Stubblefield applied to this Court for an appeal, which was allowed.
    Lyons, for the appellant, insisted:
    1st. That the parol evidence was inadmissible to explain the agreement between the parties. That the agreement was plain and explicit both as to what each was to pay and to receive, and there was no latent ambiguity to be explained. 1 Greenleaf’s Evi. part 1, § 275-6, ch. 15, § 277; Boyer v. Martin, &c. 6 Rand. 525; Crawford v. Jarrett’s adm’r, 2 Leigh 630.
    2d. That the parol evidence confirmed the agreement, and proved that the land was to be divided equally.
    
      Griswold, for the appellee,
    on the first point, admitted the general rule, that parol evidence was not admissible to vary or explain a written agreement; but said there were many exceptions to it; one of which is, where there is a latent ambiguity. And he insisted that the words “equally divided,” did not necessarily mean equal in quantity or value, but might and did often mean in just proportion or equitably ; and that it was therefore proper to explain by parol evidence in what sense the words were used. He referred to Roberts on Frauds, p. 15, 16, 22, 27, 28, 32, 33; Reno’s ex’or v. Davis, 4 Hen. & Munf. 283 ; Shelton’s ex’or v. Shelton, 1 Wash. 53; Flemings v. Willis and wife, 2 Call 5; Ross v. Norvell, 1 Wash. 14; Bumbgardner v. Allen, 6 Munf. 439; Colpoys v. Colpoys, 4 Con. Eng. Ch. R. 210; Long v. Colston, 1 Hen. & Munf. 111; Rucker v. Lowther, 6 Leigh 259.
    2. He examined the evidence, and insisted that the true agreement was that the land should be divided in proportion to what each party paid.
   Allen, J.

delivered the opinion of the Court.

The Court is of opinion, that the decree of the Court below is erroneous in directing partition of the land in the bill mentioned to be so made as to assign to said Beazely two equal third parts thereof; this Court being of opinion that by the agreement of the 29th September 1835, the said tract of land was to be equally divided between the parties by a line, to commence and run as designated in said agreement, so as to assign to said Beazely on the south or lower side of said line one equal moiety of said land, taking into consideration the quality thereof, and the improvements thereon as they existed on said 29th September 1835.

Decree reversed with costs, and cause remanded for partition of said land to be made according to the principles aforesaid, and for a final decree.  