#### Ryerss and others *vs.*Wheeler.

A *parol partition*of lands, followed by a possession and occupation in conformity to it, for a period of 30 years, is valid and operative.

And in an action against a stranger to the title, such partition will he enforced, although made by the grantee of a *tenant by the curtesy,*(the title of the wife not having passed by reason of a defect in the execution of the deed); during the continuance of the life estate, partition is good,

A plaintiffi in ejectment is permitted to retain a verdict in his favor, although on the trial he proved title to only *an undivided part*of the premises, when in his declaration he claimed the *whole.*He will, in such case be permitted to amend.

This was an action of *ejectment,*tried at the Yates circuit in June 1840, before the Hon. Daniel Moseley, one of the circuit judges.

The *fifth*count of the declaration stated that *John P. Ryerss*[ *435 ] and *Daniel Pierson and Margaret his*ivife, on the “first day of July, 1836, were possessed of 50 acres of land, part of lot No. 26, in the subdivision of lot No. *twenty-three,*in a certain tract, particularly describing the 50 acres by metes and bounds, in which *Ryerss,*and *Margaret,*the wife of Pierson, claimed a *fee,*and *Pierson,*in right of his wife, claimed a *life estate,*as tenant by the curtesy, and being so possessed, the defendant, Wheeler, entered and ejected them. The *seventh*count of the declaration was substantially like the fifth. The defendant pleaded *non cut.*After the commencement of the suit, *Ryerss*died, and his heirs at law were made parties.

On the trial the plaintiffs showed title in *JEleazer IAndsley*to lot No. *twen. ty-three;*and that he, in February, 1794, conveyed an equal undivided *moiety*of lot No. 26, *in 'the*subdivision of No. 23, to *dozen Reyerss.*Grozen Ryerss died in 1802, leaving two children, viz. *John P. Reyrss*and *Margaret,*the wife of Daniel Pierson. *JEleazer IAndsley*died leaving two sons and five daughters, his children and heirs at law ; four of the daughters married. In 1801, the two sons, *three of the married daughters,*with their husbands, and one daughter, who was a single woman, united in a deed convey*333ing their interest in lot No. 26 to *Stephen Hopkins,*the husband of the fourth married daughter: this deed was *not acknowledged*by the three married daughters of Lindsley, so as to pass their interest in the land. In 1805 Hopkins and his wife conveyed the one-half of lot No. 26 to *Sylvanus Travis.*It was then shown that as long since as 1810, a line was established dividing lot No. 26 into two parts, designated as the *north*and *south*parts of the lot; and that the north part was occupied by Travis, and the south part by *Ryerss,*each recognizing the division line as the boundary of their respective portions of the lot, and that the possessions had been since that time continued in conformity to such division. The plaintiffs having rested, the defendant moved for a *nonsuit*on the ground *that the plaintiffs had failed to prove title in themselves, as claimed in the several counts of the declaration,*or in any one of such counts, inasmuch as the three married daughters of Lindsley, who had not acknowledged the deed conveying the premises to Hlopkins, were entitled to *three-sevenths of the*[ *436 ] *moiety of lot No.*26. The defendant also insisted that the interest of those three daughters not having passed to Hopkins, the parol *partition*between the grantee of Hopkins on the one part, and Ryerss on the other, was invalid and inoperative. The motion was denied by the circuit judge, and the defendant excepted. The jury, under the charge of the judge, found a verdict for the plaintiffs, which the defendant moved to set aside.

*A. Worden,*for the defendant.

*H. Welles,*for the plaintiffs.

*By the Gowrt,*

Nelson, C. J.

It has been repeatedly decided in this court that a *parol partition,*carried into effect by possession and occupation in conformity thereto, will be binding between tenants in common, whose titles are distinct, and the only object of the division is to ascertain the separate possessions. 4 *Johns. R.*292; 9 *Id.*270 ; 14 *Wend.*619; *Co. Litt.*169, a; *Comyn’s Dig. Parceners, c.*5. Here has been an acknowledged division and occupation accordingly, by the parties, for some thirty years. I admit it will not be binding upon the three daughters of Lindsley, who were *femes covert,*and did not acknowledge the deed to Hopkins. But it would have been binding upon the husbands, who were tenants by the curtesy, if parties to the arrangement. They could have consented, and those who are, in under their title, can do the same during the continuance of their estates. A different question will arise when the three heirs appear and claim their undivided interest. That cannot happen till the death of their husbands, who, for aught that appears are still living. The plaintiffs, there*334fore, are entitled to the possession of the *whole*of the fifty acres. There may be some difficulty under the Revised Statutes in describing the precise nature and extent of their title: because, as to *three-sevenths*of the premises, it may be defeated by the future claim of the *femes covert.*The question is reduced to one of form, and the declaration is amendable, [ *437 ] so as to *conform to the nature of the title of the plaintiffs. We see no objection to' the *verdict*standing upon the 5th and 7th counts of the declaration. It will not conclude the rights of the *femes co*vert, they not being parties to the suit; and it cannot lie with the defendant to dispute the effect of the partition, which, while it remains in force, shews an exclusive right in the plaintiffs to the possession of the premises.

Eew trial dened.