Henry Baldwin

“ The husband and wife are compelled, in Pennsylvania, by statute, to make partition in the orphans' court; and that which they are compelled to do at law, they may do by agreement. Litt. 171. Hargrave, in a note, says, the above doctrine he takes to be clear law. If the partition is unequal, it is good during the life of the husband. Even infants, if the allotment is equal, are bound by partition; so a prochien ami may make partition on behalf of an infant, because the separation and division of the estate is believed to be for the advantage of the infant. ”

“ At common law, estates of tenants in common are acquired by purchase; and livery of seisin, etc. accompanies them. Coparcenaries acquire title by descent, and have a unity of interest, title, and possession. It is not necessary to levy a fine, or suffer a common recovery, to vest the estate of a coparcener, in partition; and the same rule is applicable to estates acquired by descent in Pennsylvania. Partition between coparceners does not constitute a conveyance, nor does it pass the land by a fresh investiture of the seisin. It only adjusts the rights of the parceners to the possession. ”

“ That the refusal of the treasurer to receive the redemption-money for lands so sold for taxes, is equivalent to, and dispenses with a tender of the same.
The court instructed the jury as requested in the plaintiff's first proposition. The instruction asked in the second proposition was refused. On the third proposition, the court said: Any person having an interest in land so sold, has a right to redeem the same within the period named in the act; but a mere opinion, without right or having an interest, confers no power to redeem. ”

“ Let us ask, of what use to her would be the avoidance of the partition long after the title of the purchaser at treasurer's sale was consummated? She might demand a new division, because her portion of the estate had been taken away by a sale for taxes, which were a lien thereon before the division; but she and all the other heirs would thus equally lose their proportion so sold, and each heir would therefore be equally interested in its redemption. ”

“ A party cannot pronounce his own deed invalid, whatever cause be assigned for its invalidity. 1 Kent's Com. 414; Fletcher v. Peck, 6 Cranch, 88. Under the facts disclosed on the record, could Quay and wife, even if they were desirous to do so, impugn the deed of March, 1825? Not a solitary individual, interested in the estate in 1825, or since, ever wished to destroy or invalidate the deeds of partition. For a special object and for a limited purpose, strangers who purchased with full notice of the title of the defendant below, now assail and endeavour to overthrow the title of the defendant ”

“ But it does not embrace the case of partition of lands which descended under the intestate laws of Pennsylvania. 'Tis true that lands descend to the heirs at law in Pennsylvania, as tenants in common, but with scarcely an incident connected with that kind of an estate at common law: they are tenants in common, in pursuance of the statute regulating descents in Pennsylvania, and are placed more upon the footing with coparceners in England, or at common, law, than any other description of tenants of real estate. ”

“ The husband has power to obtain her personal estate, not only without condition, but, in some instances, by means of the intestate acts, even to turn her real into personal estate, against her consent.' This evil was, however, remedied on the 29th March, 1832, when the legislature of Pennsylvania, aware of the injustice and oppression frequently practised on married women, remodelled the orphans' court law, and secured their interests in real estate against the rapacity of unprincipled husbands ”

“ A parol partition was good at common law between coparceners. Littleton, sec. 252; 3 Co. Lit. 169, b.
A guardian in Pennsylvania, though not vested with a scintilla of either legal or equitable estate in the lands of his ward, may make a consentable line, and mark the boundaries of his land with an adult, which will be binding. 10 Sergeant & Rawle, 114. And a partition is nothing more than a mere designation of boundary; it passes no interest in the estate to the grantee, other than that originally held. ”

“ As to the seventh and eighth instructions, the court said: A redemption of land sold for taxes, under the act of 1815, can only be made by the owner, his heirs or assigns, or legally authorized agent or representative; or by a person acting for the owner, with his subsequent ratification. If Quay was not the owner or part owner, or the agent of the owner, the alleged offer to redeem made by him or his son, not so ratified, has no validity; and the plaintiff, in such case, could not recover. But Quay's interest in the land was not divested at the time he caused an offer to be made to redeem ”

“ But it does not apply to our case of a division exclusively by deed, where a part of the real estate belonged to a married woman who never acknowledged the power under which it was made, and never was separately examined. The counsel in that case, when arguing in favour of the partition, find themselves compelled to admit, that if the partition had been unequal, perhaps it might be voidable by the married woman, though not void. This is enough for our purpose; for if the partition in May, 1828, was voidable by Mrs. Scarrow, when Robert Quay made the offer to redeem ”

“ Scarrow, which could confirm the alleged partition of 1825, before the duly acknowledged deed of confirmation by her and her husband in 1832, is not supplied. The counsel of the plaintiff in error have indeed contended, that her deed of 1832, operates retrospectively to validate all the previous acts of her attorneys in fact, from 1811 to 1828. But the law is well settled to the contrary. The deed of a feme covert, conveying her interest in land which she owns in fee, does not pass her interest by the force of its execution and delivery ”

“ On the 13th Movember, 1827, a partition was made by the heirs of Abel Fearon, by which partition of the part of the estate of Joseph Fearon, conveyed to them by the heirs of William Fearon was made. The deed of partition was executed by Joseph Fearon, Jacob Fox, and Elizabeth Fox, in person, and by Christopher Scarrow and Sarah Scarrow, by their attorney, Nathaniel Nunnelly. ”

“ As soon as the constitution was adopted, this right was secured by the seventh amendment of the constitution proposed by congress; and which received an assent of the people so general, as to establish its importance as a fundamental guaranty of the rights and liberties of the people. ”

“ It is only necessary to state such a proposition, to expose its fallacy. Can it even be pretended that the indentures given in evidence are not such kinds of conveyance as are mentioned in the act of 24th February, 1770? A deed is a writing sealed and delivered by the parties. Releases are a discharge or conveyance of a man's right in lands or tenements to another, who hath some former estate or possession ”

“ As marriage is equivalent to the civil death of the wife; we submit that neither Elizabeth Fearon, then Fox, nor her husband, was bound by the release.
For these reasons, we contend that the power of attorney of the 11th February, 1811 never authorized any partition ”

“ There might be excellent reasons why the two Curwens and John Wilson should be trusted to sell an undivided right in this estate, and yet not be trusted to make a division of it. The property was scattered over a wide range in Pennsylvania, near to and among the Alleghany mountains. ”

“ As the case, in 16 Serg. & Rawle, 35, can be very shortly disposed of, it will be first noticed. It decides that 'the omission to state in the certificate the acknowledgment of a release by husband and wife, that the wife was separately examined, is cured by the act of 3d of April, 1826. The land was in Lancaster county, Pennsylvania, and an acknowledgment of the release was made by the husband and wife, on the 28th May, 1798, before an associate judge of the court of common pleas of that county. ”

“ Scarrow or any other heir.
A power to sell does not authorize a partition. 1 Mad. 214; 2d Sugden on Powers, 506; 16th vol. Law Library, 273.
Another objection to the instrument called a partition, dated 12th March, 1825, is, that it purports to be executed by the attorneys in fact of Elizabeth Fearon. Whereas Elizabeth Fearon was married to Jacob Fox, in the year 1812; and in 1825 was a feme covert, and had so been for thirteen years before the alleged partition. ”

“ Scarrow during coverture; and as her husband is in full life, no person can avoid it. But as Mrs. Scarrow has ratified and confirmed the partition in the lifetime of her husband, all others are estopped, forever, from denying its validity. The deed was not void; it was only voidable. Cowper's Rep. 291. The estate passed to the grantors by the deed of 1825, during the lifetime of Scarrow. See Mercer & Watson, 1 Watts' Rep. 307. The alienation was good against Scarrow ”