Richmond.

#### Campbell v. Dotson.

November 16, 1911.

1. Partition—Fraud—Case *in*Judgment.—Where the sole issue made and decided in the trial court was whether or not the complainant had induced one of the defendants to sign a deed of partition by fraudulent representations as to the location of the division line, and no issue was presented as to the incompleteness and consequent nullity of the deed of partition on account of the failure of some of the parties to sign it, and it appears that a partition had been verbally agreed on between the parties, and they had entered upon the shares allotted to them and made improvements, and one of them had conveyed his interests according to the metes and bounds agreed on, a decree partitioning the lands in accordance with the lines set out in the deed will not be disturbed, where the evidence of the alleged fraud falls short of that clear proof which the law requires to establish a fraud.

Appeal from a decree of the Circuit Court of Buchanan county. Decree for the complainant. Defendant appeals.

*Affirmed.*

The opinion states the case.

*E. S. Finney,*for the appellant.

*Chase & Daugherty*and *A. A. Skeen,*for the appellee.

Keith, P.,

delivered the opinion of the court.

Shade Dotson filed his bill in the Circuit Court of Buchanan county, from which it appears that he is tenant *686in common with Rhoda Dotson and A. W. Campbell in certain lands in the bill mentioned, he owning one-half, Rhoda Dotson one-fourth, and A. W. Campbell one-fourth. There is filed with the bill a deed, marked Exhibit “F,” dated November 11, 1907, between A. W. Campbell, of Pike county, Ky., Rhoda Dotson and John S. Dotson, her husband, John H. Dotson and Mary Dotson, his wife, of the first part, and Shade Dotson, of Buchanan county, Va., of the second part. This deed is only executed by A. W. Campbell, John H. Dotson and Mary Dotson, and Campbell in his answer avers that it is not binding upon him because of an error contained in it, growing out of the false and fraudulent representations of Shade Dotson, and that the facts are as follows: That he and Shade. Dotson “agreed to partition said land in the deed mentioned, and Dotson for that purpose had a deed prepared and represented to respondent that said deed called for a line agreed on between Pricy Fuller, John H. Dotson and respondent, when in fact the line put in said deed was not the line agreed on at all, but a different line, begins at a different point and runs to a different point to that agreed on and to that which respondent intended to convey to, and is not the true division line as agreed on, and that there is error in the description of the division line; that respondent did not know when he signed said deed that there was an error and mistake in it as to the location of the division line; that Shade Dotson represented to him that the division line in the deed was the line that had been agreed on, and respondent signed said deed believing it to be the line agreed on as represented by Shade Dotson.”

This was the sole issue tried in the circuit court. Upon it evidence was taken, and the circuit court rendered a decree partioning the land in the bill mentioned in accordance with the lines set out in the deed, and from that decree A. W. Campbell has appealed.

*687In his petition before this court he relies in large measure upon the fact that the partition deed was not signed by all of the parties to it; that it was an incomplete instrument and therefore a nullity; that it being an agreed fact that the land mentioned in the bill was of uniform value, he was entitled to one-fourth of the entire area, which was 153.24 acres instead of 127.35 acres, as allotted to him by the decree.

The record shows that a partition of these lands had been verbally agreed upon between the parties; that they had entered upon the shares so allotted to them and had made improvements; and that one.of the tenants in common had conveyed his interest in accordance with the metes and bounds agreed upon between the parties. It further appears that no issue is presented by the pleadings in this cause with respect to the incompleteness and consequent nullity of Exhibit “F.” The answer of Campbell sets out the alleged misrepresentation and fraud upon which he relies with much amplification, and at the conclusion of his charge he denies that the deed is binding on him; but it is obvious that this general denial has relation to the specific allegation of fraud as releasing him from the obligation of the deed, and not to the fact that the deed was wholly void.

When we come to consider the evidence upon the charge of fraud, we find it to be wholly insufficient and falls far short of that clear proof of fraud which the law requires.

Upon the whole case, we are of opinion that the decree complained of should be affirmed.

*Affirmed.*