#### JOSEPH SCOTT *vs.*JOHN SCOTT.

The plaintiff and defendant, being tenants in common of a tract of land, run a dividing line, by consent, terminating at a certain point.vviiliin the tract. The court now decrees that commissioners be appointed to run a line from such point to the outer line of the tract, so as to make a full and complete partition.'

This cause was transmitted by consent to the Supremo Court from the Court of Equity of Burke county.

The bill was filed by the plaintiff at the Spring Term, 1839,.of Burke Court of Equity, alleging that the plaintiff and the defendant were tenants in common of a certain tract of land, and prayed for a partition to be made in the mabner prescribed by the Act of Assembly, in such cases made and provided. The defendant, in his answer, objected to a decree, alleging that a division had already been made, by the mutual consent ot the parties. To this there was a replication. Proofs were taken and the cause set for hearing. The facts are stated in the opinion delivered in this court.

*Alexander*for the plaintiff.

D. F. *Qaldwell*for the defendant.

Daniel, J.

The plaintiff and defendant were tenants in common of a tract of land. They had jointly occupied it, until they respectively married. And then the defendant built a house on the East side or portion of the tract; and the plaintiff built a house on the West side of the said tract, where each of the parties settled with their familes. They afterwards required a surveyor, by the name of Dobson, to run a dividing line between them. Dobson did run a straight *175dividing line across from North to South. But both parties then disagreed to that line. The plaintiff and the defendant then agreed to erect and keep in repair the fences, which now divide and separate their respective fields and farms. Their fences or agreed lines extend across the creek and bottoms or low lands of the said creek up to the hill lands on either side of the creek, as designated by the red lines on the surveyor’s, Mr. Suddith’s, plat. These red lines intersect the Dobson line, on the north side of the creek at letter M.; and on the south side of the creek at the figure 5. From these two points to the outside lines of the tract, at E and F. The defendant insists that the Dobson line was agreed between them to be the dividing line; and that they each had held and claimed up to it and no further for the last thirty years-That all the privileges taken by either of the parties beyond that line, were, by licence, obtained from the respective owners on each side of the said line. The plaintiff put in a replication to the answer. The depositions of many witnesses have been taken; and after examining them, we are compelled to say, that *they*do *not prove*that there wrs ever an agreed line between the parties (Dobson’s or any other) from the termination of the red lines, to the outside lines of the original tract at E and F, or to any other points in the outside lines. Partition by them of the original tract' of land held in common, has never been made as appears to us. The evidence, that the plaintiff asked leave of the defendant to set a machine-house on the land at M., and lying a little north of the termination of the red line in that direction, is too weak a circumstance for us to establish the Dobson line as an agreed line from the terminations of the red lines to the outer boundary lines of the whole tract of land. Indeed, the defendant in his answer, does not aver that the parties ever agreed upon a division, which should extend entirely across the tract. We are of the opinion, therefore, that the plaintiff is entitled to a decree for partition so far as the same has not yet been completed, as prayed for in his bill,

Per Curiam, Decree accordingly.