#### JAMES W. JONES against HIRAM CARLAND AND OTHERS. AND HIRAM CARLAND AND WIFE against JAMES W. JONES.*

Where B, one of eleven heirs at law, represented to A, another heir, who owned two elevenths, that he had purchased eight parts, which, with his own, amounted'to nine parts; and they agreed in writing to divide the land between them, so as to give A his two elevenths adjoining his other land, and such agreement was carried into execution by marking a dividing line, each taking possession, which was held for nine years without question; upon a bill for specific performance, B shall not be heard to say that he was not able to perform, because he did not own all the shares he had claimed, but a performance will be decreed.

Causes removed from the Court of Equity of Henderson County.

Some time in the year 1831, Thomas Jones died intestate, leaving him surviving, eleven heirs at law, namely, Martha, the wife of Hiram Carland, Russel L. Jones, W. D. Jones, James Jones, Thomas Jones, Nancy Penland, wife of Gr. N. Penland, Nelly Luther, wife of Soloman Luther, Patty Reeves, wife of Larkin Reeves, Nelly McCraken, Rachel Peoples, *503wife of George N. Peoples, and Jane Lance. At the time of his death, he was seized in fee of a certain tract of land, lying on French Broad Biver, known as the Swan Pond tract, containing about 500 acres. The plaintiff purchased the shares, or interest, of "VVm. D. Jones, and James Jones, in said land, amounting to two elevenths. Hiram Garland, the defendant, owned one eleventh in right of his wife, and on the 18th of March, 1839, represented to plaintiff that he owned the shares of the other eight heirs at law, which, together with his own interest, would make nine elevenths. On that day Garland and the plaintiff agreed in writing to make partition of the land, according to their respective interests, so as to allow the plaintiff to have his two elevenths in a body adjoining his, (plaintiff’s) other land, and the defendant his nine elevenths laid off in the remainder of the land, and as an inducement to this partition, plaintiff agreed to lot defendant have the rent of his part for one year, which he received. The parties employed a surveyor and had the land divided according to this agreement, and plaintiff was to have all the land ajoininghim, up to a certain line run and marked by the surveyor. After this was done, the parties supposing that there was nothing more necessary to perfect their rights to their respective shares, thus laid off, directed a mutual friend, whe had been selected by them as a depository of their written agree, ment; to cancel the same, which was done by tearing off iheir names.

Both parties entered upon their allotted portions, and held for the space of nine years, during which time for six years there was no challenge or disturbance of each others rights; afterwards, however, about three years ago, the defendant filed a petition in the Court of Equity for the sale of the whole tract for partition, which is still pending, and is the other case named above. Before this was done each was entirely ignorant of any deficiency in their respective titles, or that any deed or other conveyance was necessary to complete them. The plaintiff alleges, that after finding out the necessity of doing so, before filing this bill, he offered to make a proper con*504veyance in fee of bis interest in the nine elevenths which the defendant had got, and called on him to convey the nine elements of the part assigned to plaintiff, which he refused to do.

The plaintiff says in his bill, that a sale of the property will be extremely prejudicial to him, as he has put expensive improvements on the part allotted to him, under the belief that his title was good. The rest of the lieirs-at-law of Thomas Jones are made parties defendant.

The prayer of the first bill is for a specific performance of the contract of partition by decreeing that each party shall execute title according to the written agreement, and according to their occupation in pursuance thereof.

The answer of the defendant admits the contract and possession according to it, but says, in reply, that he is not able to mate title to two elevenths; that one of these belongs to the heirs of Mrs. Lance, who died before he was able to procure title from her, although her husband had given bond to make him a title to her part; and another eleventh belongs to his wife.

The prayer of the bill in the second case is for a sale of the land for partition.

Baxter, for plaintiff.

If. W. Woodfin, for defendants.

*

These cases were argued and considered together at last term when the first opinion was filed.

PbabsoN, 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 *505only seven parts, out of eleven, of the land; that his wife owns one part, and the other part belongs to the herirse at-law of Mrs. Lance, who died before he was able to procure 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. Rep. 209, it was held by the 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 an 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 aj^plicablc to the present one, we will not now decide ; because it is suggested that, by a decree for a partition in the case of Carland and wife v. Jones and others, the commissioners may, in their discretion, and with due regard to the rights of all the parties concerned, allot to Jones, the two parts of which he is now in possession, or allot them to Garland, 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 to 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, Garland and wife, one part, and the heirs of Lance the other part.

The case of Garland and Jones 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.

Pee Oueiam. Decree accordingly.