text:
    The State, Respondent, v. Hays, Appellant.
    1. Where after four several continuances granted to the same party, another application was made in his behalf on the ground of the absence of material witnesses, the accompanying affidavit -stating generally that due diligence had been used to secure their attendance, and that one witness was side and unable to attend, yet not showing in what the alleged diligence ■consisted ; held, under the circumstances, that the application was properly refused.

      Appeal from Polk Circuit Court.

      F. P. Wright, for appellant.
    The only question presented is, whether the court exereised its discretion soundly in refusing the continuance. A continuance should have been granted; continuances may be granted in criminal -cases for like causes and under like circumstances as in civil cases. (R. C. 1192, sec. 19.) The refusal to grant a continuance to a party showing good and sufficient cause for it has uniformly been considered by this court as a sufficient ground for reversal. (State v. Mackey, 12 Mo. 492; McLane y. Homes, 1 Mo. 501; Riggs v. Fenton, 3 Mo. 21; Moore & Porter v. McCulloch, 6 Mo. 444; Tunstall v. Hamilton, 8 Mo. 500 ; Dame v. Broadwater, 8 Mo. 18.) Defendant, in this case, used all possible diligence.
    Ewing, {attorney general,) for the State.
   Ryland, Judge,

delivered the opinion of the court.

The defendant was indicted at the April term of the Cedar Circuit Court, in the year 1853, for disturbing the peace of the family of Elizabeth Humbard in the night time. The cause was continued at the October term of the court, in the same year. At the April term of said court, in the year 1854, the cause was continued on the application of the defendant. At the October term of the court, in 1854, the defendant applied for and obtained a change of venue from Cedar county to Polk county. At the April term of the Circuit Court for Polk eounty, in the year 1855, the defendant applied for and obtained a continuance of the cause. At the October term of the court, in the same year, the defendant again applied for and obtained a continuance of the cause. At the April term, 1856, he again applied for and obtained a continuance of the cause ; and at the October term, 1856, of the Polk Circuit Court, the defendant applied for a continuance of the cause, and filed in support of his application, an affidavit; the court overruled this application; the defendant excepted. He was tried and convicted, and fined forty-five dollars. He moved for a new trial, which being denied him, he brings the case here by appeal, and relies upon the refusal of the Circuit Court to continue the cause at the October term, 1856, as the sole ground for reversing the judgment of the court below. The affidavit for the continuance is as follows ; The defendant states that he can not safely go into trial of this cause at this term of the court, on account of the absence of material witnesses in this cause. Defendant says that he has used due diligence to have said witnesses present, and they have been duly subpoenaed and are not in attendance ; one of said witnesses, to-wit, Maria Hicks, is sick, as this affiant is informed and believes, and is unable to attend in consequence, and defendant did not know this till yesterday morning ; that he expects to prove by said witnesses that he did not disturb the peace of the family as charged against him ; that he knows of bo other person present by whom he can prove the same facts ; that this application is not made for the purpose of delay, but for the purpose of obtaining said testimony ; and that said witnesses are not absent by his consent or connivance, and he thinks he can have their testimony at the next term of this court, if a continuance is granted.”

We think the court decided properly in refusing to grant this continuance. This defendant had been putting this case off from time to time for years. He would continue it, and then at the next term apply for a change of venue, which again continued the trial, and after the change of venue to Polk Circuit Court, he had three continuances from April term, 1855, up to October term, 1856 ; and then makes bis affidavit stating that he had “ used due diligence” to have the witnesses present, without showing in what that diligence consisted. He omitted to show when the subpoena was issued; when served; how far distant from the court-house the witnesses resided. He omits to show any diligence or to make out any sufficient or reasonable ground to continue. He does not state that- he is unable to prove the facts he expects to prove by the absent witnesses by any other persons ; but cautiously says that “ he knows of no other persons present by whom he can prove the same facts,” yet there may be others who knew equally as well as his absent witnesses, and whose attendance at court might easily be had by proper caution and' diligence. This affidavit was not sufficient to justify the expectation of a continuance in-any case, much less in one where the court could reasonably entertain a doubt of the desire or wish for trial on the part of the affiant.

The Circuit Court very properly refused to continue this case at October term, 1855 ; and this being the principal cause of complaint, the judgment below is affirmed; the other judges concurring.


source: Caselaw Access Project

author: Rtland, Judge,

license: Public Domain

text:
    The State, Appellant, v. Chandler, Respondent.
    1. An indictment founded on- section 34 of article 2 of the act concerning Crimes and Punishments (It. C. 1845, p. 350), charging an assault with a loaded gun, with intent to kill, will not he rendered defective hy an omission to state therein the manner of the assault or the mode in which the gun was used, or attempted to he used.

      Appeal from, Circuit Court.

      Ewing, (attorney general,) for the State,
    cited R.' C. 1845, p. 350, sec. 34; 1 Hawk. 62, §1; 2-Wash.-G. C. 435; State v. Smith, 2 Humph. 457 ; 11 N. H. 271 ; 1 Green (Iowa) 418 ; United States v. Bachelder, 2 Gall. 18 ; 3 Gil-man, 76 ; 3 Chitty C. 'L. 788, 826 ; 4 Hill, 135 ; 2 Ya. Cas. 402 ; 11 Ohio, 282 ; 6 Ala. 664 ; 18 Ala. 535.
   Rtland, Judge,

delivered the opinion of tbe court.

The defendant was indicted in the Circuit Court of Dunklin county, at the September term, in the year eighteen hundred and fifty-five, for an assault with intent to kill one Samuel Moore. The defendant appeared to the indictment and moved the court to quash it. The motion was sustained; the indictment quashed; the circuit attorney excepted, and brings the case here by appeal.

The indictment is as follows : “ The grand-jury of the State of Missouri, impannelled and sworn to inquire in and for the body of the county of Dunklin, upon their oath do present, that Lewis Chandler, late of the county of Dunklin, in the State of Missouri, on the first day of October, A. D. one thousand eight hundred and fifty-five, with force and arms, at the county of Dunklin, and state aforesaid, upon the body of one Samuel Moore, then and there being, feloniously, on purpose, and of his malice aforethought, with a deadly weapon, to-wit, a gun, which he, the said Lewis Chandler, in both his hands then and there had and held, which gun was then and there loaded with gunpowder and a leaden ball, did then and there make an assault, with the intent him, the said Samuel Moore, then and there to kill, against the peace and dignity of the State of Missouri.’5 The reasons assigned in the motion to quash are, because it is not alleged in what manner the assault was made, or the deadly weapon — the gun — was used, or attempted to be used ; whether by beating or shooting, or in fact in any way or mode.”

This indictment is almost a literal copy from a form in 3 Chit. C. L. p. 828. It is substantially good. The mode of making the assault would appear not to be necessary to be set forth. It is a matter of proof. In the opinion of this court, the particular .manner in which the assault was made need not be pointed out in .the indictment. Sec. 34 of art. 2 of the act concerning Crimes .and Punishments, (R. C. 1845, p. 350,) under which this in•dictment was found, declares that every person who shall on purpose, and of malice aforethought, shoot at or stab another, or assault Or beat another with a deadly -weapon, &c., with intent to kill, &c., shall be punished,” &c. The indictment, in substance, charges that Chandler, feloniously, on purpose, and of his malice aforethought, made an assault upon the body of one Samuel Moore, with a deadly weapon, to-wit, a gun held in both hands, and loaded with powder and ball, with intent to kill him. This is sufficient.

The Circuit Court erred in quashing the indictment. Its judgment must be reversed, and the cause remanded ; the other judges concurring.


author: RylaND, Judge,

text:
    The State, Defendant in Error, v. Greenhalgh, Plaintiff in Error.
    1. An indictment for an assault upon one J. C., with intent to kill, charging that J. G., the defendant, “ with a certain gun, then and there loaded with gunpowder and divers leaden halls, which said gun he, the said J. G., then and there had and held in his hands, to, against and upon the said J. C., and then and there did unlawfully, feloniously, on purpose, and of his malice aforethought, the said gun did cock, raise and present, with the intent then and there unlawfully, feloniously, and of his malice aforethought, the said J. C. to shoot and kill; and that the said J. G. would have executed his said purpose and intent had he not been prevented and intercepted from so doing, contrary,” &c., is sufficient.

      Error to Cooper Circuit Court.

      Stephens and Davis, for plaintiff in error.
    I. The court erred in overruling the demurrer. (State v. Jackson, 17 Mo. 544State v. Leonard, 22 Mo. 449; 1 Chit. C. L. 249; 3 T. K. 106; 1 Chit. PI. 227; Steph. PI. 318 ; 7 Wend. 129 ; 10 Johns. 289.)
    II. The court erred in overruling defendant’s motion in arrest of judgment. The provision of the statute upon which the indictment is founded does not include the use of fire-arms as an aggravated or indictable offence, unless a shot be fired. (R. C. 1845, p. 350, sec. 34; Ros. Crim. Ev. 776; 1 Ros. on Crimes, 720.) The offence charged is only punishable in a summary manner before a justice of the peace. (R. C. 1845, p. 672.) Neither count in the indictment charges the defendant “ with an attempt to commit an offence,” so as to bring the case within the provisions .of article 9, sec. 1. (R. C. 1845, p. 408.) The only weapon charged to be used was a gun, yet no shot was fired. No count in the indictment attempts to charge that the gun was a dangerous or deadly weapon. (State v. Jourdan, 19 Mo. 212.) If the gun be charged to be used as a fire-arm, must there not be a shot-fired also ? And if the gun be charged in the indictment to be the instrument with which the assault is made, must the gun not be charged to be a deadly weapon, there being no shot or discharge of the piece averred ?

      Ewing, (attorney general,) for the State.
    I. The indictment is sufficient. (R. 0. 1845, p. 350, sec. 34.) The assault being charged as having been made with a gun, is a sufficient averment that the weapon was deadly. It is equally an assault with a deadly weapon, whether the gun is used in an attempt to shoot or strike; and being a deadly weapon whether used in one mode or the other, the offence is properly charged when the indictment alleges an assault with a gun, without stating the manner in which it was attempted to be used. Courts will take judicial notice that a gun is a deadly weapon.
    II. The objection to the indictment that the section of the statute under which it was framed excludes the use of fire-arms as an offence prohibited by it when no shot is fired assumes, 1st, that a gun is not a .deadly weapon, except when used in shooting ; and 2d, that an assault by means of a gun could not be made in a manner likely to produce death or great bodily harm, unless in an attempt to discharge it, which is an absurdity.
   RylaND, Judge,

delivered the opinion of the court.

The defendant was indicted for a felonious assault upon the •body of John Crawford with a gun with an intent to kill. The defendant appeared to the indictment and filed his demurrer, which was overruled ; he then pleaded not guilty — was tried and convicted. He then filed his motion in arrest of judgment, which being overruled he brings the case here. There are five counts in this indictment. The third count is as follows : ■ “And the jurors aforesaid, upon their oath aforesaid, do further present, that the said James Greenhalgh, late of said county of Cooper, on the twenty-fourth day of September, in the year of our Lord one thousand eight hundred and fifty-five, at the said county of Cooper, with force and arms, in and upon one John Crawford, in the peace of the state then and there being, unlawfully and feloniously an assault did make: and that the said James Greenhalgh, with a certain gun, then and there loaded with gunpowder and divers leaden balls, which said gun he, the said James Greenhalgh, then and there had and held in his hands, to, against and upon the said John Crawford, and then and there did unlawfully, feloniously, on purpose and pf his malice aforethought, the said gun did cock, raise and present, with the intent, then and there unlawfully, feloniously, and of his malice aforethought, the said John Crawford to shoot and kill; and that the said James Greenhalgh would have executed his said purpose and intent had he not been prevented and intercepted from so doing, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state.”

We think this indictment sufficiently sets out the offence in this third count. In this count, we see it is substantially, although awkwardly averred, that the defendant made the assault, and then, going on to specify the manner in which it was done, charges that he raised and presented his loaded gun against the said John Crawford, and would have killed him had he not been prevented; this we think substantially an allegation that he made an assault with a loaded gun, in the manner detailed in the indictment. This count then being considered good is sufficient to support the judgment. This indictment is not like the indictment in the case of the State v. Jourdan, 19 Mo. 212. The indictment of Jourdan, upon a close inspection, will be found to contain no charge; it is all recital; no assault is charged to have been made by the defendant with the pistol with intent to kill. In the indictment against Jourdan, after the first general averment of an assault being made, the pleader avers as follows : “And that the said Charles Jour-dan, with a certain deadly weapon,” &c. Now ask the question, what did said Jourdan do with that certain deadly weapon ? and you will see that the indictment omits to state what; omits to aver or state that he made an assault on Laughton. The pleader has done nothing more than recite certain matters, without making the charge that Jourdan made the assault with the pistol on Laughton. Here against Greenhalgh the charge is different. He is charged with the fact that he raised and presented his loaded gun against the prosecutor, and that he would have killed him had he not been prevented.

We think the third count sufficient', and that the judgment should be affirmed. The other judges concurring, it is affirmed.


author: Scott, Judge,

text:
    The State, Plaintiff in Error, v. Clifton, Defendant in Error.
    X. Mares are cattle within section 57 of article 3 of the act concerning Crimes and Punishments. (R. C. 1845, p. 364.)

      Error to Chariton Circuit Court.

    Ewing, (attorney general,) for the State.
    Harris, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

This is an indictment under the 57th section of the 3d article of the act concerning Crimes and Punishments, which enacts that, “if any person shall wilfully and maliciously kill, maim or wound any cattle of another, he shall, on conviction, be punished,” &e. The indictment charges that the defendant, on tbe-day of-, at, &c., certain cattle, to-wit, one mare, &c. Tbe case of tbe State v. Hambleton, 22 Mo. 452, settles tbat borses or mares are cattle within tbe meaning of tbe section under wbicb this indictment is framed. We think the section of the act preceding the 57th makes this matter plain.

The other judges concurring, tbe judgment will be reversed, and tbe cause remanded.


author: Soott, Judge,

text:
    The State, Respondent, v. Sutton, Appellant.
    1. It is not necessary that an indictment, founded on section 34 of article 8 of the act concerning Crimes and Punishments, for keeping open a grocery on Sunday, should contain the negative allegation that the grocery was not kept open for the sale of drugs, medicines, provisions, or other articles of necessity.

      Jlppcal from JYewton Circuit Court.

    Tbe court refused to instruct tbe jury, at the instance of tbe defendant, tbat “ tbe usual opening of tbe door of a grocery, and going in on Sunday, is not such a keeping open of a grocery door as is contemplated by tbe statute.”
    Hendrick, for appellant.
    Ewing, (attorney general,) for tbe State.
   Soott, Judge,

delivered tbe opinion of the court.

Sutton was indicted under tbe 84th section of the 8th article of tbe “ Act concerning Crimes and Punishments,” approved March 27th, 1845. (R. C. p. 405.) He was convicted and fined, and, after an unsuccessful motion in arrest of judgment and for a new trial, appealed to this court. Tbe ground on which tbe motion in arrest of judgment was based, was tbe omission in tbe indictment of tbe negation that tbe grocery was kept open for the sale of drugs, medicines, provisions, or other articles of necessity.

There is nothing in this objection. The rule is, that in pleading upon statutes, where there' is an exception in the enacting clause, the indictment must show that the defendant is not within the exemption ; but if there be an exception in a subsequent clause, that is matter' of defence, and the accused must show it to exempt himself. Here, the exception was not only omitted in the enacting clause, but was only coutained in the subsequent succeeding section of the act.

There certainly was no error in the instructions given on behalf of the State. The second instruction ashed by the defendant was not so worded as to raise the question that seems to have been contemplated, and the evidence scarcely warranted it. If one lives in the house in which his grocery is kept, and his comfort or convenience requires the door of the grocery to be kept open, and it is kept open on that account, and not with any view to evade the law, or to allure customers, or to carry on his ordinary business, he does not violate the statute.

The other judges concurring, the judgment will be affirmed.


text:
    The State, Plaintiff in Error, v. Flack, Defendant in Error.
    1. An indictment under section 17 of article 8 of the act concerning1 Crimea and Punishments, charging that the defendant did on, &c., &c., “unlawfully bet a sum of money, to-wit, fifty cents, at and upon a game of chance, played with and by means of half dollars and cracks in the floor of a house, which said half dollars and cracks was then and there a gambling device, adapted, devised and designed for the purpose of playing games of chance for money and property,” is sufficient.

      Error to JV'ewton Circuit Court.

    Ewing, (attorney general,) for the State'.

      Hendrick, for defendant in error.
   Scott, Judge,

delivered the opinion of the court.

Hugh Flack was indicted for that he did unlawfully bet a sum of money, to-wit, fifty cents, at and upon a game of chance, played with and by means of half dollars and cracks in the floor of a house, which said half dollars and cracks was ■ then and there a gambling device, adapted, devised and designed for the purpose of playing games of. chance for money and property.

This indictment is under the code of 1845. The 16th section of the 8th article of the act concerning crimes and their punishments therein contained makes it unlawful to bet at or upon any gambling device. So the indictment would have been good under this section, although there had been no allegation that the device was adapted, devised and designed to play a game of chance for money or property. As it is, we are of the opinion the indictment is good ; maintaining that, whether the device used was adapted, devised and designed for playing any game of chance for money or property was a matter to be shown in evidence by the State on the trial. The other judges concurring, the judgment will be reversed, and the cause remanded.


author: Soott, Judge.

text:
    The State, Plaintiff in Error, v. Charles, Defendant in Error.
    1. State v. Flack, ante, p. 378, affirmed.
    Ewing, (attorney general,) for the State.
    Hendrick, for defendant in error.
   Soott, Judge.

This case is in all respects like that of the State v. Hugh Flack, decided at this term. In accordance with the opinion therein delivered, this judgment will be reversed, and the cause remanded, with the concurrence of the other judges.


author: Scott, Judge.

text:
    The State, Plaintiff in Error, v. Sutton, Defendant in Error.
    X. State v. Flack, ante, p. 378, affirmed.

      Error to JVeiulon Circuit Court.

      Ewing, (attorney general,) for the State.

      Hendrick, for defendant in error.
   Scott, Judge.

This case is in all respects like that of tbe State v. Hugh Flack, decided at this term. In accordance with the opinion therein' delivered, this judgment will be reversed, and the cause remanded, with the concurrence of the other judges.


text:
    The State, Respondent, v. Gilbert (a slave), Appellant.
    1. An indictment, under section 57 of article 3 of the act concerning Crimea and Punishments (R. C. 1845, p. 364), against a negro slave for maliciously killing a mare, must charge the act to have been done “ feloniously.”

      Jlppeal from Polk Circuit Court.

      F. P. Wright, for appellant,
    cited State v. Murdock, 9 Mo. 730; Lucy (a slave) v. The State, 8 Mo. 134; 7 Mo. 183 ; State v. Comfort, 5 Mo. 357; The State v. Helm, 6 Mo. 263.

      Ewing, attorney general,) for the State..
   Scott, Judge,

delivered the opinion of the court.

The defendant, a slave, was indicted under the 57th section of the 3d article of the act concerning Crimes and Punishments, for wilfully and maliciously cutting the throat of a mare, the property of Charles Crane, whereby she was killed. After a trial and conviction, a motion was made in arrest of judgment, on the ground of defects in the indictment. This motion was overruled, and an appeal was taken to this court.

The indictment was for a felony, and was clearly bad for want of the word “feloniously.” Nothing is better settled than that in all indictments for felonies, the criminal act must be alleged to have been feloniously done. (State v. Murdock, 9 Mo. 730.)

It was hinted that the indictment might be sustained under the 38th section of the 8th article of the act concerning Crimes and Punishments. (R. C. 1845.) Without inquiring whether such is the case, it is enough to remark that the section to which reference is made constitutes the act therein prohibited a misdemeanor ; and slaves for a misdemeanor are not liable to an indictment, but must be proceeded with before a justice of the peace of the county in which the offence is committed. (Secs. 27 & 28, art. 9, R. C. 1845, p. 413.) The other judges concurring, the judgment will be reversed.


author: DboNARD, Judge,

text:
    The State, Appellant, v. Burgess, Respondent.
    1. Although the failure of the foreman of a grand jury to certify under his-hand an indictment to be a true hill is no cause for arrest of judgment after a trial and conviction, it is ground for quashing the indictment before-trial.

      •Appeal from, Qritndy Circuit Court.

      Ewing, (attorney general,) for the State.
    I. The signature of the foreman of a grand jury is not a» essential part of an indictment. The statute requiring it is: merely directory. (State v. Mertens, 14 Mo. 94; State v. Clark, 18 Mo. 432.) The record shows the indictment was “ returned into” court by the grand jury “ a true bill.” Indictments found by a .grand jury are presented by their foreman, in their presence, to the court, and are there filed, and remain as records of such court. (R. C. 1845, p. 86-6, § 21)j This goes to the validity of the indictment — the signature of the foreman to its authenticity only. (Steele v. State, 1 Texas, 142; Burgess v. Commonwealth, 2 Ya. Cases, 483; id. 427 ; 'Commonwealth v. Walters, 6 Dana, 290.)

      J. C. Griffin, for respondent.
    I. The words a “ true bill” upon the back of the indictment .are not in the handwriting of the foreman of the grand jury.
    II. The name of the foreman of the grand jury is not signed by him to the words “ a true bill” upon the back of the indictment. (See R. 0. 1845, tit. Practice and Proceedings in Criminal Cases, art. § 19.)
   DboNARD, Judge,

delivered the opinion of the court.

According to the English practice, indictments are drawn up an'd preferred to the grand jury by any private prosecutor, in the name of the king. The jury then hear the evidence, and if they think the accusation groundless, they endorse upon the bill “not a true bill;” but if they are satisfied of its.truth, they endorse it “ a true bill.” It is then deliver d publicly in court by -.the -.grand .jury, received by the court, and placed among its files, and the indictment is then said to be found, and the party stands accused. (4 Blac. Com. 306; 1 Chit. Crim. L. '324.) The American practice is similar, except that here the grand jury generally hear the evidence first, and if they agree to find a bill, the indictment is then drawn up in form by the proper law officers of the government, and sent to them for their endorsement and delivery into court. (Webster’s case, 5 Greenl. Maine, 432. ) In North Carolina (State v. Cox, 6 Ired. 446, and State v. Collins, 1 Dev. & Batt. 374,) it has been expressly holden that the endorsement was no part of the indictment, but that it was the action of the grand jury in returning the bill into court, and the receiving of it there, that rendered it a legal accusation against the defendant; and the same opinion seems to prevail in South Carolina. (State v. Creighton & Bell, 1 Nott & McCord, 257.) And although in 1 Chit. Crim. L. 324, it is said that the endorsement a true bill” becomes part of the indictment, and renders it a complete •accusation, yet Ford’s case, (Zelv. 99,) which is referred to as authority, does not seem to warrant the assertion. Indeed, the position is contradicted by the form of 'the record, which, when •formally drawn up, omits all mention of the endorsement, and states in the caption merely that the grand jury present that the accused did, &c., reciting-the allegations of the indictment ; and this is the principle upon which the want of a proper endorsement is disallowed in arrest of judgment after a conviction. (Burgess v. Commonwealth, 2 Virg. Cases, 483; Waw-kon-chaw-neek-kaw v. United States, Morris, Iowa, 332; and the cases from _ North and South Carolina- above referred to.) However, in Webster’s case, (5 Greenl., Maine, 432,) where the words of the finding were endorsed but the foreman’s signature was admitted, and in Squier’s case, (10 New Hamp. 539,) where the signature only was omitted, the defect was allowed to prevail, after verdict, in arrest of judgment, on'the ground, it would seem, that the matters omitted were an <esse al part of the indictment. Subsequently, however, in Freeman’s case, 13 N. Hamp 488, the Supreme Court of New Hampshire held, that the omission of the words “ a •true bill,” if the foreman’s signature was endorsed, was no «ause for arresting the judgment, and expressly overruled Webster’s case, and this decision was followed in Massachusetts, in Commonwealth v. Smith, 1 Lead. Crim. C. 204, note.

The practice that prevails in our State, as to the endorsement upon an indictment when found by the grand jury, was incorporated into our written law at the revision of 1835; and afterwards, in Merten’s case, this court decided that this requirement was diredory merely, and could not prevail after a trial and conviction, and to this decision we still adhere. The present question, however, is altogether a different one; the Circuit Court having, in the preliminary stage of the proceeding, quashed t'he indictment for want of the required proof of its authenticity, we are asked to reverse the order, and thus in effect partially at least repeal the statute fey declaring that the Circuit Court can not, if the omission escaped' them at-the time the' bill was presented, afterwards correct the omission by quashing the- indictment before trial. We think otherwise ; the proof of the authenticity of the indictment required by the statute is the most convenient and trustworthy that could fee-provided, and we see no- reason why the courts-should not make the provision effectual by exacting a compliance with it, when it has not been waived, it not indeed rendered quite unnecessary by the conviction of the party after- a fair trial, The judgment is affirmed.


text:
    Bompart et al., Plaintiffs in Error, v. Roderman et al., Defendants in Error.

    31. The act to provide for the partition of 'land, &C., (R. C. 1845, p. 764,) did not authorise the joinder of all the parties in interest as parties to the petition 5 there ’must he a party defendant as well as a party .plaintiff, otherwise the proceeding will not be a suit for partition within said act, and being unauthorized will ‘be null and void as a judicial proceeding.
    ¡2. Such a proceeding being unauthorized as a judicial proceeding, a partition made therein would not be rendered binding upon a married woman — one of the applicants for partition — by reason of -the execution by her of an instrument in writing recommending the report -sf the commissioners to the approval d£ the court.
    3. Although a partition so effected she followed up by possession in severalty of the allotments, a party to such proceeding will not thereby be estopped to go behind1 the partition and deny that other of said parties had title to the premises so partitioned.
    4t Nor would' sueh an estoppel be created by the fact that one of the parties' to whom,an allotment had been made conveyed the premises, so allotted, to* a third person, describing them as the same allotted to the grantor in said' partition, proceeding.

      Appeal from St. Louis LanaT Court.

    This was a suit for partition instituted by Louis B. Bompart and Louis F. Bompart — sons of Louis and Francois Bompart— against Aurore, widow of said Louis Bompart,. Emelie, widow of said Francois Bompart, the children and grand-children of' said Louis and Francois, also against Marie Madeleine Delo-rier, Charles Roderman and Celeste Roderman, his wife. Blaintiffs state in their petition “ that Baptiste Bompart died seized and entitled of the following pieces or parcels of ground,, situate in the said county of St. Louis, and more particularly described, as follows : First, a piece of ground', in block 87 of the city of St. Louis, containing twelve feet, be the same more- or less, and.running eastwardly one hundred and fifty feet, be* the same more or less, and being lot numbered three, as assigned by commissioners in partition among heirs of Henry Delo-r rier, bounded, &e. ; second, a lot or tract of ground, in said county of St. Louis, containing twenty arpens, being lot designated A., as assigned by commissioners in said partition among heirs of Henry Delorier to said Baptiste Bompart, being, four arpens wide, &c. ; that said- Baptiste Bompart died intestate and without issue; that his sole heirs were his brothers-Louis Bompart and Francois Bompart, and his uterine sisters Marie Delorier and Celeste, wife of Charles Roderman ; that said Marie and Celeste are the children of Henry Melard, alias* Delorier, and Celeste Duehouquette ; that said Celeste Duchou-quette is mother of said Baptiste Bompart, having subsequent to the death of his father, Lafleur Bompart, intermarried with said Delorier ; that said Loui3, brother of Baptiste Bompart, has also died intestate, leaving as his sole legal representatives Aurore, his widow, [a party defendant to. this suit,} and Louis B. Bompart [plaintiff], Catberine Therese Bompart, Henry Bompart, Joseph Bompart and Melinda Bompart [who are made defendants to this suit], bis children ; that said Francois Bompart, brother of Baptiste, is also dead, leaving as his sole heirs and legal representatives, Emilie, his wife,” and others, his children and grand-children (among whom was Louis F. Bompart, plaintiff), “but devising by will, duly probaled, the usufruct of his estate to Emilie, his wife, remainder to his children, &c. Plaintiffs therefore pray tint the court determine the rights of the respective parties, give judgment of partition, and for such other and further relief,” &c.
    Aurore Bompart, widow of Louis Bompart, as also Emelie, widow of Francois, answered, admitting the allegations of the petition. Answers were also filed in behalf of the minor defendants, the children and grand children of said Louis and Francois.

    Charles Roderman and Celeste, his wife, and Marie M. De-lorier, by their answer, admitted that Baptiste Bompart died seized of the first lot described in the petition, to-wit, that in block 37 ; but denied that he died seized, or was ever seized of the lot of twenty arpens secondly described. They alleged that Henry Delorier died seized of said last mentioned tract; that the same descended at his death to his only surviving children and heirs, the said Celeste Roderman and Marie Madeleine De-lorier.
    In support of their title as alleged, plaintiffs offered in evidence the following record:
    “ State of Missouri, county of St. Louis, ss. Be it remembered that heretofore, viz., on the 9th day of February, 1846, there was filed in the Circuit Court of the county aforesaid a petition, which is in the words and figures following, viz :
    “ ‘ To the honorable John M. Krum, judge of the Circuit Court of St. Louis county, sitting in chancery. Your petitioners,. whose names are as follows, bj tbeir solicitor, beg leave to represent that the heirs at law of Henry Melard, alias Delorier, deceased, whose names are Emilie Bompart, wife of Francis Bompart, deceased, Louis Bompart, Baptiste Bompart, Mary Delorier, a,nd Celeste Roderman, wife of Charles Roderman, formerly Celeste Delorier, did inherit as heirs at law certain real estate, lands and tenements, negroes, slaves, personal property, and choses in action, which said personal and real estate is described as follows, to-wit: one certain piece and parcel of ground situate on the river Des Peres, in the county of St. Louis, and state of Missouri, to-wit: one hundred ar-pens of land, being in the east part of survey 1930, being part of a concession by the Spanish government of Upper Louisiana to Therese Barois and Frances Brazeau, two widows ; and a certain lot situate on the east side of Second street, adjoining the Green Tree tavern, and south of the same, being sixty feet front, more or less, and about-■ feet deep, this in the city and county of St. Louis, and state of Missouri; also one negro man named Bob, one negro woman named Narcisse, and her two children, girls — the eldest named Julia, about two years old, the other named Maria, about five or six months old; one other mulatto girl, called Sophia, about sixteen or seventeen years old. Now therefore your petitioners, by their solicitor, pray your honor to appoint commissioners to make partition between the aforementioned devisees and heirs aforesaid, being adults and of lawful age, and mutually consenting to and applying and praying for equitable partition of all the property aforesaid, they being the only heirs and devisees of Henry Melard, alias Delorier, deceased ; and your petitioners do further pray your honor to do in the premises all which may be equitable and just in partition of the property, real and personal, which the said several devisees, by mutual agreement and assent, signified by these presents, may or can be done in regard to their rights and interests jointly and severally, and that partition may be made in conformity with equity, and your petitioners will ever pray, &c. For the petitioners, Alphonso Wetmore, solicitor.’

      “ At tbe November term, 1845, of our St. Louis Circuit Court, on Tuesday, February 10th, 1846, the following proceedings were had herein, viz :
    “Now at this day come the said petitioners by their attorney, and file their petition herein, praying for the partition [of the] lands and premises therein described, and also of certain personal property referred to, whereupon all and singular the premises are submitted to the court, which being seen, heard, and fully understood, and it appearing to the court from said petition that the said petitioners are the heirs at law of Henry Melard, alias Delorier, deceased, and as such inherited from him the following personal and real estate, to-wit: one certain piece and parcel of land, lying and being in the county of St. Louis, and state of Missouri, to-wit: one certain piece and parcel of land, situate on the river Des Peres, in the county of St. Louis, and state of Missouri, to-wit: one hundred arpens of land, being in the east part of survey 1980, being part of a concession by the Spanish government of Upper Louisiana to Therese Barois and Frances Brazeau, two widows ; and a certain lot situate on the east side of second street, adjoining the Green Tree tavern, and south of the same, being sixty feet front more or less, and about-feet deep, this in the city and county of St. Louis, and state of Missouri; and also the following described personal property, to-wit, one negro man named Bob, one negro woman named Narcisse and her two children, girls — the eldest is named Julia, about two years old, the other named Maria, about five or six months old ; one other mulatto girl, called Sophia, about sixteen or seventeen years old ; the court doth therefore order that partition of said real estate and personalty be made between said petitioners according to their respective rights and interests, and Theodore Papin, Samuel Mount and Henry Taylor, three respectable freeholders, residents of the county of St. Louis, where the property to be divided is situate, are hereby appointed commissioners to make such partition, and they are ordered to make report of their proceedings under this order to this court without delay.

      “ Afterwards, on the 12th day of February, 1846, the following report of commissioners was filed herein, viz :
    “ ‘ We therefore, Theodore Papin, Samuel Mount and Henry Taylor, commissioners appointed by the honorable John M. Krum, judge of the Circuit Court of St. Louis county, in the state of Missouri, in chancery, to make partition between the heirs and devisees of Henry Melard, alias Delorier, deceased, of the real estate, negroes and personal property by him devised, ;o-wit, unto Emelie Bompart, widow of Francois Bompart, deceased, Louis Bompart, Celeste, wife of Charles Roderman, formerly Celeste Delorier, Baptiste Bompart and Marie Delo-rier, do now make their report of the property devised as aforementioned, and in conformity with the plat of the survey and the schedule hereto annexed, which form part and parcel of this report, that they award to Baptiste Bompart the part of the one hundred arpens of the river Des Peres tract, which is marked with the letter A, containing twenty arpens, and that they also award in partition [here follow allotments of twenty arpens of said tract “ to Charles Roderman, in right of wife,” of twenty arpens to Marie Delorier, of twenty arpens to heirs of Francois Bompart, deceased, of twenty arpens to Louis Bompart. The commissioners also made a similar partition of the lot of sixty feet front in the city of St. Louis, allotting twelve feet front thereof ‘ to Charles Roderman,’ and the same quantity to Louis Bompart, also to Baptiste Bompart, to Marie Delorier, ‘ to Francois Bompart’s heirs.’] The commissioners also value as the joint property of the petitioners, the heirs inheriting the above estate, and value the negro slaves of the estate as follows : one negro man, named Bob, at $200 ; one negro woman, named Narcisse, with her two children, at $550 ; one mulatto woman, at $400 ; the ‘whole value of said slaves being $1150. The commissioners further report that there is of the estate aforesaid in personal property, choses, as follows : notes of the value of $271 65, and plate (silver) of the value of $52. The commissioners, therefore,, report that the heirs of the estate aforesaid have agreed by their signatures respectively hereto annexed, that they will be content with a judgment and decree of his honor, John M. Krum, that they be allowed to partition among themselves the negroes and other personal estate according to the valuation fixed upon all and singular the different parts and parcels thereof, according to the inventory hereto annexed. [Signed] Theodore Papin, Henry Taylor, Samuel Mount.’
    “ £ We, the heirs of the estate of Henry Melard, alias Delo-rier, deceased, to-wit: Emelie Bompart, widow of Francois Bompart, deceased, Louis Bompart, Celeste, wife of Charles Roderman, formerly Celeste Delorier, Baptiste Bompart, and Mary Delorier, hereby agree and pray the honorable John M. Krum, judge of the Circuit Court of St. Louis county, sitting in chancery, to allow and decree and adjudge that they the several heirs of the above named Henry Melard, alias Delorier, deceased, pray that under the appraisement of the commissioners your honor made, may be allowed to make partition of the personal property and negroes according to the following inventory : one negro man, named Bob, aged 58 years, valued at $200 ; one negro woman, named Narcisse, with her two children, she aged 84 years, one child aged two years, the other six months, valued at $550 ; a lot of old silver ware valued at $52 ; one mulatto girl, named Sophia, aged seventeen years, valued at $400 ; two notes of $271 66 ; total, $1473 66. The equal shares of the several heirs being $294 73 each ; now the division proposed is in form following : Charles Roderman has become the purchaser of the negro woman named Narcisse and her two children, for the sum of $550 ; and Baptiste Bom-part has become purchaser of the yellow girl named Sophia for the sum of $400 ; and Louis Bompart having become the purchaser of the negro man Bob for the sum of $200 ; and the widow of Francois Bompart has become the purchaser of the lot of silver ware named in the inventory, and the notes therein named, the notes and the silver ware together amounting to the value of $326 66 ; now therefore the share of each of the above named heirs and their interest therein severally being $294 78, each of the said heirs, who received more than their shares of the property aforesaid upon the valuation and partition thereof, have paid over to the other heirs the excess over and above their several shares of the value of the negroes and the personal property above described ; now we, the undersigned, being satisfied with the appraisement of the commissioners and their partition, and the mutual purchasers of the several parts and parcels of the negroes and the personal property, pray that we, being the sole heirs of the said estate, may have judgment and decree affirming all and singular the acts and doings of the commissioners and ourselves in the premises; and your petitioners will ever pray. [Signed] Louis Bompart, Emelie Bompart, Baptiste Bompart, Marie Delorier, Charles Roderman, Celeste Roderman.’
    “ Afterwards at the November term, 1846, of our said court, on Friday, December 11th, 1846, the following further proceedings were had herein, viz :
    “Now at this day come the petitioners by their attorney, and on his motion it is ordered that the report of the commissioners, filed in this cause, be confirmed as valid and effectual forever.
    “ State of Missouri, county of St. Louis, ss. I, William J. Hammond, clerk of the Circuit Court within and for the county aforesaid, certify the foregoing to be a true transcript of the record and proceedings in the case of Emelie Bompart et al., in partition, as the same remains in my office. In testimony whereof, I,” &c.
    Defendants Roderman and wife and Marie Madeleine Delo-rier objected to the introduction of this record on the ground that the proceedings were void, there being no judgment in partition. This objection was sustained. The plaintiff's then offered the record as evidence of the admissions and declarations of the parties to it. It was ruled out, on objection, as incompetent to prove any admissions or declarations of said Roderman and wife and Marie Madeleine Delorier. Plaintiffs then proved that Baptiste Bompart died possessed of the twenty arpens in controversy ; that be had been in possession of it for nearly ten years ; that the various parties named in the report of the commissioner above set forth took possession of the several parcels allotted to them, and occupied them, each as his own, claiming title in the severalty; that prior to the time of the parties entering into the exclusive possession of the several parcels allotted to them, Delorier’s estate was in possession of the whole. It also appeared that Celeste, wife of Charles Roderman, and Marie Madeleine Delorier, were the sole heirs of Henry Delorier.
    Plaintiffs then offered in evidence a deed of trust, dated December 9th, 1858, executed by Charles Roderman and Celeste, his wife, by which they conveyed to Charles G. Weber and Charles Balmer, in trust, certain premises described in said deed, as follows: “ that certain tract or parcel of land containing twenty arpens, situate in said county of St. Louis, part of survey No. 1980, bounded on the north by a tract of twenty ar-pens, now or formerly belonging to the heirs of Francis Bom-part ; on the east, by a part of said survey 1930, now or formerly owned by Louis Bompart; on the south by a tract of twenty arpens, now or formerly belonging to Baptiste Bompart [the tract in controversy in the present suit], and on the west by land now or lately owned by John C. Marshall; the tract of land hereby conveyed being the same which was allotted by commissioners in partition to said Charles Roderman, in right of his wife Celeste Roderman, as lot B, according to the report of said commissioners, and the plat of survey accompanying the same, made by them among the heirs of Henry Delorier, which report and plat were approved by the Circuit Court of said St. Louis county, on the 12th day of February, 1846, a copy of which report and plat, and the approva land confirmation thereof by said court, duly certified, is herewith filed for record.” Plaintiffs also introduced the original record book . from the office of the recorder, to show that the record of partition alluded to in the deed — the same as that ruled out by the court as already above set forth — was filed for record in the recorder’s office, on the same day said deed of trust was filed for record. The court ruled out said deed of trust and said record as incompetent.
    Plaintiffs then introduced Charles Roderman, defendant, as a witness, who testified “ that he (witness) knew the parties to this suit; that himself and his wife Celeste Roderman were parties to this suit; that said Celeste and Marie Madeleine were sole children of Henry Delorier ; that Baptiste Bompart had been in possession of the tract of twenty arpens sought to be partitioned, and had occupied it ever since the alleged partition spoken of; that each of the parties had' taken exclusive possession of their several parcels about ten years ago, about the time and after the alleged partition ; that he (witness) did not know of any attempt to disturb the parties in their possession; that he (witness) was now in possession of the tract of twenty arpens claimed by Baptiste Bompart’s estate, having rented it of the administrator of said Baptiste ; that he (witness) had since purchased the tract of twenty arpens so taken by Marie Madeleine Delorier, so that he (witness) now had a tract of forty arpens instead of twenty arpens — that is, twenty arpens in his own right, and twenty in right of his wife, Celeste Roder-man.”
    The court instructed the jury that “ upon the case made in testimony before the jury, the plaintiffs are not entitled to a verdict upon the issues.” Plaintiffs thereupon took a non- suit, with leave to set the same aside. Exceptions were duly taken.

      J. P. and P. B. Garesché, for plaintiffs in error.
    I. The proceedings of the original partition are legal. The Land Court declared them void upon the hypothesis that in the first judgment that partition should be made, the court failed to decree what were the respective rights of parties. But this is but the interlocutory decree, not the final decree, and therefore no appeal could be taken from it. (Gudgell v. Mead, 8 Mo. 53 ; MeMurtry v. Glasscock, 20 Mo. 482 ; Hite, v. Thompson, 18 Mo. 465.) There was a final judgment of partition entered in the very words of the statute upon the filing of the report of tbe commissioners. (See R. C. 1845, p. 770, Partition Act, § 28.)
    II. Roderman and wife are estopped by tbe recitals of their deed. (Lajoye v. Primm, 3 Mo. 368 ; Dickson v. Anderson & Thompson, 9 Mo. 156; Taylor v. Ulrici, 19 Mo. 89.) The lot in block 87 and the twenty arpens having both been assigned by the same partition to Baptiste Bompart, as alleged in the petition, and Roderman and wife, and Marie Madeleine Delo-rier, by their silence, admitting the legality of the proceedings to give them title to block 37, will be estopped to deny it as to the 20 arpent lot. (Taylor & Mason v. Zepp, 14 Mo. 482 ; Blair v. Smith, 16 Mo. 273.)
    III. But even if proceedings were void, and parties are not estopped, under the testimony of the witnesses, it was a fair question to be left to the jury whether they had not assented to it. (Brown v. Wood, 17 Mass. 68 ; 11 Pick. 311 ; 13 Penn. 376.)
    IV. It is not true that Charles Roderman was not a party to the proceedings for partition.
    V. The heirs of Francis Bompart were parties in the person of his widow Emelie. Besides, these heirs are content with the partition.
    VI. Though it should be held that the partition was void as a record partition, it is good as a parol one. Roderman testifies that he has purchased the twenty arpens allotted to Marie Madeleine Delorier ; also that he is now in the possession of the twenty arpens allotted to Baptiste Bompart, having leased it of Louis B. Bompart, (one of the plaintiffs,) administrator of Baptiste Bompart. He is estopped to deny the title of said Baptiste. He is also estopped to deny the partition. The question is not whether the parties are estopped to deny the title, but whether, affirming the validity of a partition as to one piece of property, they can impeach it as to another, both being made by the same judgment. Let us suppose that the children of Mrs. Delorier, by a former husband, made with their step-father, said Delorier, an agreement that the children he should have by their mother should be equal heirs with them in their father’s estate, and they with them in his said Delorier’s estate ; that these heirs of the first bed had a lot on Main street, and those of the second a tract of land in the country; that one suit of partition is instituted for both these pieces'of property, the children of the first and second marriages sharing alike and equally both pieces of property ; that afterwards one of the heirs of the first marriage dies, and partition is sought, and the heirs of the second bed, as is now done by Roderman, admit the validity of the partition as regards the lot in the city, to which they had no other claim than by the partition suit, but disavow it as to the tract in the country. These are the facts in the present instance, and if not elicited, it was because the court below excluded every thing, and decided the case.
    iS'. Beber, for defendants in error.
    I. The proceedings for partition in the Circuit Court.were irregular and void for several reasons. First, there was no ascertainment of the interests of the parties in the property sought to be divided, either by a direct finding of the court, or inferentially by a statement of those interests in the petition, and an award of partition accordingly. It is of the very essence of a judgment of partition that the’interest of the parties should be ascertained ; for how otherwise can the commissioners make the division ? They have no authority to adjudicate on the respective rights of the parties. It is no answer to say that no appeal lies from an interlocutory judgment. A judgment may be reversed for error in the interlocutory decree, and a void interlocutory decree will render the whole proceeding void. Second, the proceeding is void because the commissioners allot slaves to Charles Roderman and to the heirs of Francis Bompart, when they are not parties to the record at all, and give nothing to Emelie Bompart,’ who was found by the judgment of the court to be one of the heirs of Henry Delorier, whose estate was to be divided. Third, the commissioners were not sworn, nor was their report proved or acknowledged. The judgment of confirmation did not cure these errors. Nor •did tbe paper signed by the parties cure the irregularities ; 1st, ■because that paper only relates to the personal property ; and ■2d, if it-'had in express terms confirmed the prior proceedings, it could not in law have any such effect, for they were void. I waive the fact that the execution of the paper was not proved.
    II. The proceedings being void as a record partition, were they in connection with the subsequent occupancy by the parties in severalty .good as a parol partition;? The title to land ■can only pass by writing executed in form of law. There are two exceptions to this rule, which both rest, if properly understood, upon the same equitable ground. The one is the case •of a parol sale of land which has been‘executed by the vendee ; and the other, where there has been a parol partition of land in pursuance of which the parties have occupied and improved, and -on the faith of which they have expended their labor and money, •so that it would be inequitable not to hold the parties concluded by it. In both these eases, the parties are estopped to deny the fact on the existence of which the opposite parties have acted. To make -a valid parol partition of land, the parties to at must all have title ; the division must be fair and equal in value if all the owners are not sui juris $ there must be occupancy in conformity with it; there must be acquiescence; and there must be expenditure of money or labor by some of the parties, so that it would work injustice to disregard the partition. No parol partition is rendered complete and binding by severalty of possession before the statute of limitations has vun, unless facts have transpired that would render it unjust to disturb it. {See Cogswell v. Reed, S Eairf. 198.) There was mo such proof in this case as would justify the court or jury in finding the fact of a parol partition binding on the parties.
    Hi. The court properly excluded the deed of Roderman and wife, because to ^create an estoppel there must be mutuality. 'The admission that Baptiste Bompart had title to the town lot does not compel the defendants to admit his title to the land in the country.
    IV. The foregoing points go mainly to the affirmance of the judgment oí non-suit. I wish to go further, and if possible procure such- a decision as will settle the title to- the land in controversy. It appears from the evidence in the cause — somewhat dimly it is true — that the land in controversy belonged to Henry Delorier, and that Mrs. Roderman and Marie Delorier are his only heirs. The question I desire to have decided is this, whether (the record partition being out of the case) the parol partition, if it can be sufficiently proved on- another suit being brought to establish it, will estop 'the Delorier heirs from going behind it, and showing that Baptiste Bompart had no title to the land sought to be divided? In other words, whether a parol partition has the same effect to estop parties that a partition in a court of record is said to have ? Lord Coke says, “ if Rose (bastard eigné) and Ann (mulier puisne) make partition, Ann and her heirs are concluded forever.” (1 Co-. Litt. p, 709, 170, i>.) But this doctrine does not hold, it would seem, in parol partitions, nor in equity. (See notes 68 and 69 to above reference 'y see also Jackson v. Yosburg, 9 Johns. 270 -r Jackson v. Livingston, 7 Wend. 141.) It seems that a partition does not give title, but only severs the possession. (Jackson v. Christman, 4 Wend. 284 ; 9 Johns. 276 ; 1 Co. Litt, 170, 5.) A partition between strangers is void. It would seem reasonable that, if two owners of land make partition of it and hold in severalty, they do not get title by the partition, but only several possessions ; and that, the title being proved and the possession being severed by parol agreement, they are es-topped to deny the partition or severance of possession when, such denial would work injustice-; but there can be no injury when one of the parties has no title whatever to any of the land. If A., owner of an, entirety of land, and B., a stranger, enter and make a parol partition, is not the partition yoid ? Can A, pass the title to the land in that way ?

       The importance of this case, as affecting titles to real estate, has induced sthe Reportes to make a full and .elaborate report thereof.

       Several of these minor defendants appeared by their guardian, Louis F. Bompart, one of the plaintiffs. It is also to be noted that A. J. P. Garetche, one of the plaintiffs’ counsel, also acted as counsel for said guardian in appearing in behalf of his wards.

   Scott, Judge,

delivered the opinion of the court.

We are of the opinion that the court did not err in rejecting the supposed record of partition among tho-se styling themselves the heirs at law of Henry Delorier, deceased. That paper contained no record of a suit at law or equity. There is no plaintiff nor defendant. The proceeding is altogether a voluntary one. The consent of the parties could confer on the court no jurisdiction to proceed in the manner it did. It is as if those concerned had made a voluntary partition among themselves. Their subsequent ratification of the proceedings could impart no-validity to them as a judicial act which they did not possess of themselves. The statute contemplates that in suits for partition there should be a plaintiff and a defendant. In all suits at common law, there must be an actor and a reus. If parties come in voluntarily and ask a court to make a partition among them, and it is done, they will stand afterwards just as they did before the court interfered, so far as a judicial sanction is concerned.

Those who are competent to contract may make such partition among themselves as they please, and it will be binding but where partition is made by writ of partitione facienda, there it is otherwise ; all the tenants, or those whose rights may be affected by it, should be parties. (Coke, 180 a.)Francis Bompart had an interest in the land. He was dead. It. appears that he had heirs. Now they should have been parties.. Even if their interest was by way of remainder or reversion* they should have been. (Burnhans v. Burnhans, 2 Barb. Ch. 398.) When we see by the record that there are parties who should have been joined, but who were not, whose portions have not been allotted to them, do we not see that the whole thing.' must necessarily be erroneous; that in giving those who are1' unprovided for in the partition their shares afterwards all the previous allotments must be set aside ?

As to the points that the partition was binding as a voluntary'' one without the sanction of the court, and that it was made ■ binding by the subsequent recommendation of the parties, we-are of the opinion that such a mode of making a partition will5 be binding when the parties are all sui juris and bind themselves by a proper agreement. Had the agreement been relied: on, the original should have been produced, and the handwriting of the parties proved. A copy of the agreement found in the record was not evidence. It was not under seal. It could not therefore pass title. It would only amount to an agreement to convey. Whether the paper signed imported an agreement whose specific performance would be enforced by the decree of a court, we will not determine. Nor do we say whether the recommendation related to both the real and personal estate, •or to the personalty alone. In the next place, the signatures show that it is not a binding agreement upon all interested. Celeste Roderman’s husband was no party to the proceeding • otherwise than by signing the paper expressing the satisfaction of the parties thereto with the report of the commissioners, and recommending its approval to the court. How would Mrs. Ro-derman’s signature affect her rights ? Could she convey away fher interest in lands otherwise than by pursuing the mode prescribed by law for alienating her real estate ? Charles Roder-jnan having signed it, it would be binding on him as to his life •estate or curtesy in his wife’s land ; but we do not see how it • could be made binding on her. The paper too is signed by Emilie Bompart, who was the wife of Louis Bompart. It is •not signed by his heirs. Her signature would not bind the .'heirs, or in any way affect their rights.

The principle that a parol partition, followed up by possession, will be valid and sufficient to sever the possession, is only applicable to those cases where there is a title and it is admitted to be in common ; that is, where the parties are admitted to have a title, and are joint tenants or tenants in common with respect to it. In such a case there can be no question of title. The dispute can only be whether the limits of each one’s possession have been settled. If they have been, there is a valid partition when possession has followed the adjustment. Very different is the case where the title of those setting up such a tenancy in common is denied. There the partition of itself can confer no title. It, together with adverse possession for twenty years, or with such acts and conduct on the part of those asserting the invalidity oí partition as would create an estoppel in pais or otherwise, might give title or protect the possession. (Jackson v. Vosburgh, 9 Johns. 275.) Here the title of the party setting up the partition is wholly denied, and no bar is shown by lapse of time, nor any facts or circumstances which would create an estoppel. The deed from Roderman and wife can have no such effect. At most it is nothing more than an admission by them that there had been a partition. It is to a third person, and if it creates an estoppel, it is only between them and the person to whom the deed was executed and those claiming under it. Roderman’s admission that a partition had been made, does not pass away his title, no more than an admission by one that he had conveyed away his land would be evidence of the fact. Lands must be conveyed in pursuance to the statute of frauds. In the case of Jackson v. Sherman, 6 Johns. 21, it is said, “ these acknowledgments of the party as to title to real property are generally a dangerous species of evidence, and, though good to support a tenancy or to satisfy doubts in cases of possession, they ought not to be received as evidence of title ; this would be ¿o counteract beneficial purposes of the statute of frauds.”

If, as was insinuated, there was an agreement between the heirs of Mrs. Delorier by Bompart, and those by Delorier, that the lands inherited from their respective parents should form a joint inheritance to be equally divided among them, we would suppose that if the heirs on the part of Delorier deny to the heirs of Bompart any portion of their inheritance, then they would be prepared to yield up any interest they may have received in the inheritance of the Bomparts. We do not see why they may not be compelled to this. But we will not go into this matter, as the record is silent in regard to it.

Judge Ry-land concurring,

the judgment will be affirmed;

Judge Leonard absent.

       Leowake, ¿fudge, by reason of indisposition, was necessarily absent dar-dng idle greater part of this ¡term, and .consequently sat at the hearing of hut Sfew cases. — £ Rep.