In equity an agreement in writing to make partition will have the same effect as an actual partition. Where a bill in equity sought to have a deed of partition set aside, on the ground that it was procured by the fraud of the defendant, and to have a new partition made not only of the land embraced in said deed, but also of other land owned in common by the plaintiff and defendant, and the plaintiff failed to establish the charge of fraud; held, that the bill would not be absolutely dismissed, but that it should be retained to make partition of so much of the land as was not embraced in the deed, and that the plaintiff should pay the defendant's costs up to the rendering of the decree sending the case to the master for that purpose.
This instrument was signed and sealed by the parties, and they each took possession of the land respectively assigned to them, and continued to occupy the same at the bringing of this suit. But the partition provided in the above writing did not embrace the piece nineteen feet by ten feet. The bill charges that this instrument was defective and void, that the partition, which it purports to make, was an imperfect partition, and the plaintiff was induced to execute the writing, by which it was effected, by the false and fraudulent representations of the defendant that said writing provided for a full and perfect partition of the entire premises, a moiety of which was conveyed to her by the defendant's deed, and prays that said writing may be set aside and a new partition granted.
The answer denied the charges of fraud, and set up, that the piece of land nineteen feet by ten feet was included in the description of the premises, the one half of which was conveyed by the defendant to the plaintiff, by mistake, and that, in the partition made between them, it was intended and fully understood that the plaintiff was to have only one half the premises, which were designed to have been conveyed to her.
There was no evidence to prove directly the fraud charged in the bill, or that the piece of land nineteen feet by ten feet was not intended to be included in the deed of the defendant to the plaintiff, as set up in the answer.