AUGUST TERM, 1853.

#### HIRAM CARLAND & WIFE *against*JAMES W. JONES AND RUSSEL JONES AND OTHERS, HEIRS AT LAW OF THOMAS JONES—AND JAMES W. JONES *against*HIRAM CARLAND.

A. owned two shares out of eleven in a tract of land, and B. claimed to own the rest. They entered into a written contract to divide the land so held by them in common ; the partition was made, and possession was held by A. for several years without its being perfected by a deed. B. th$n filed a bill for a sale of the whole tract, alleging that a share in it belonged to certain infants. A. then filed a bill against B, for a specific performance of the contract for partition, which B. resisted, upon the ground that he had failed to procure all the titles he had expected to at the time of the first contract.

*Held,*That to do justice to A., the Court would, in the case of the petition for a sale, order the commissioners to make a partition between A. and B. and the infants, reserving a further consideration of the rights of the infants until the coming in of the report of the commissioners.

Causes removed from the Court of Equity for Henderson county, at Spring Term, 1848.

In 1831 Thomas Jones died intestate, seised and possessed of a tract of land in the pleadings mentioned, and leaving eleven' children, to wit, Martha, wife of Hiram Carland, and the defendants in the case first above stated.

Carland and wife, in 1847, filed their bill for a sale of the said land for the purpose of a partition, and in addition to the heirs at *236law of said Thomas, James *W.*Jones claiming' to have purchased the undivided shares of two of the heirs, is also made a party-defendant. Carland alleges that he purchased the shares of eight of the said heirs at law, for which deeds were duly executed by them respectively, except of the share of Henry Lance and wife, and in regard to this share, he says that Russel Jones having purchased the same of the said Henry, and taken his bond for title., afterwards sold it to him and gave his bond for title ; but that before any deed was executed Mrs. Lance died, leaving children, minors. The plaintiffs then slate that the defendant, James W. Jones, *“*has taken possession of a portion of said land, which he claims to be equal to two-elevenths thereof, but which is-in fact greatly more than two-elevenths ” — that he has held and cultivated the same for several *years*— “ and with a view to delay any other proceeding or bill in this Court for a sale or partition of the land, the said defendant, James W. Jones, about two years ago, filed his petition in this Court against your orator alone, praying a sale or partition,” and the plaintiff states that he was willing that a decree for a sale should be made, as soon as the proper par, ties were before the Court, but the defendant James W. Jones would not consent thereto, and the plaintiffs then state they believe that the purpose of' said James W. is to continue his petition in Court as long as possible, that he may remain in possession and wear Out the land as much as possible. The bill prays a decree for a sale of the land, and Carland claims thereof eight of the shares by purchase, and one in right of the feme plaintiff Martha.

The defendant James W. Jones, in his answer, states that several years before the bringing of this bill, he purchased two shares in said land, to wit, those of William and James, and exhibits his titles thereto with his answers. After this purchase, he avers that he and the plaintiff Carland who claimed to own the other nine-elevenths agreed upon a partition, and ran a conditional line by which their parts were respectively allotted to them, and he went into possession of his portion — Carland agreeing in an instrument of writing then executed between them to make title to the said James *W.*Jones for his said shares and interest, and so to divide and make partition ; and after a survey was made and said division line run, the said Carland surrendered the possses*237sion to the defendant, who has since remained in possession and made valuable improvements on the premises. And this defendant further avers that he has, at various times, offered to exchange deeds with Carlarid, who has refused, alleging that it was not necessary, as he Jones held a bond for title ; and that thus each of them having been in possession of their said allotted portions for eight years, the said Carland had neve? complained until the said James W. Jones “ was compelled to file his bill-to require the said Carland to consummate the contract relinquishing to him his said share according to their said agreement.” And this defendant Jones denies that in the filing or continuing in Court his said bill, his purpose was to occasion delay, hut it was to settle and establish his rights under his said contract with Carland. The plaintiffs replied to the answer of Jones, and the parties proceeded to take proofs.

Pending the said bill brought by Carland and wife, find after it was transmitted to the Supreme Court, James *W.*Jones filed his bill against the said Hiram Carland for a specific performance of the contract between them, referred to in the pleadings of the first suit, and in this bill he sets forth as matter of complaint the various matters averred in his answer to the other bill, alleging the agreement to divide and portion the lands in the proportions stated- — -the going into possession by the parties — and his remaining so in possession, in ignorance of the fact that mutual deeds should be executed between him and defendant in order to perfect their titles, until the defendant and wife filed their bill for a sale of the land — -that after the lines were run and possession was taken by them, they were of opinion that was sufficient to secure their titles, and accordingly directed a mutual friend who held the agreement to tear off their names — which was done — that he has offered to execute proper conveyances to the defendant, and has applied to him to perform his part of the contract — which he has refused; and that a sale of the property as prayed for by defendant in his said bill will greatly injure him, inasmuch as he has made on his portion improvements of great value, to wit, over one thousand dollars.

Garland answers and admits the execution of the said agreement, but relies on the fact of its cancellation, and insists that the *238parties stand as if the same never had been executed. He avers that at the time of the execution of said contract, he stated to the plaintiff that three of the said undivided shares belonged to infants, and that the obtaining of their titles was uncertain, though he admits he has since procured the titles of all except the heirs of Lance, and he has no hope or prospect of obtaining theirs : and he insists that said heirs are necessary parties to this bill. And further answering, the defendant insists that the plaintiff, having voluntarily dismissed and abandoned his bill heretofore filed for a partition, and a specific execution of said contract is precluded thereby from again harrassing him from time to time with new suits for the same cause, and he pleads the same in bar of the plaintiff’s equity in the premises. He then states that it is not true that the plaintiff has made improvements to the value alleged — that he has received profits from the land of great value — - and that he has himself expended more for improvements in pro- ’ portion to their respective interests in the premises than the plaintiff.

This cause was set for hearing upon the bill and answer, and transmitted to the Supreme Court for hearing.

*J.*Baxter, for Jones.

*Bynum*and *N.*TFi *Woodfin,*for Carland and wife.

PearsoN, J.

These two cases were heard at the same time, as they relate to the same tract of land. We are satisfied from the evidence that Jones and Carland executed a *written*agreement to make partition of the land — Jones *to*have *two*parts out of eleven, and Carland nine *parts;*that a dividing line was accordingly run, *And*that the parties have held possession of their respective parts in severalty ever since. At the time of the partition the parties did not execute deeds, and Jones now calls on Carland for a specific performance of the agreement to make partition, and the execution of the necessary title deeds. To this Carland replies that he is not able to perform his part of the contract, for that he owns only seven parts out of eleven, of the land *;*that his wife owns one part, and the other part belongs to the heirs at law of Mrs. Lance, who died before he was able to *239procure the title, although her husband had given bond to make title. The excuse offered by Garland for not performing his part of the contract comes with a very ill grace, after the parties have acted upon the contract — and been in possession under it for so many years, and made expensive improvements. In *Love*v. *Camp,*6 Ire. Eq 209, it was held by this Court that if one entered into a contract to convey land, fraudulently representing himself to be the owner, and received the purchase money, he could only relieve himself from a decree for a specific performance by a,n averment and proof that he had made all reasonable exertions to procure the title, and was unable to do so.

Whether the principle of that case is applicable to the present ' case, we will not now decide, because it is suggested that by a decree for partitioain the case of Carland and wife against Jones and others, the commissioners may in their discretion, and with a due regard to the rights of all of the parties concerned, allot to Jones the two parts of which he is now in possession, or allot them to Carland so as to enable him to comply with his contract and put an end to the controversy with Jones. The report of the Clerk and Master as to whether the interest of the parties requires a sale of the land for partition is not at all satisfactory, and we feel at liberty, therefore, to act upon the suggestion, and order a partition of the land to be made by Commissioners, so as to give Jones two parts, .Carland in his own right seven parts, Carland and wife one part, and the heirs of Lance the other part.

The case of *Jones*v. *Carland,*will be retained for further directions. The commissioners will be directed to accompany their report with a full statement of facts, so as to enable the Court to decide whether any prejudice will be sustained by the heirs of Lance by the order for actual partition.

Per Curiam. Decree accordingly.