ALLEN et al. v. SEAWELL et al.; BROCK et al. v. SAME; HIDY et al. v. SAME; TRUMPER et al. v. SAME; GATES et al. v. SAME; YATES et al. v. SAME; SMITH et al. v. SAME; LOVELESS et al. v. SAME, 70 F. 561

TAFT, Circuit Judge, after stating the facts, delivered the opinion of the court. In the cast1 of Berry v. Seawall, 13 C. C.

A. 101, 65 Fed. 742, it was decided that in Ohio a parol partition consummated by possession and acquiescence under it for any less period than that which creates the bar . by the statute of limitation does not vest the legal title in severalty to the allotted shares, but that such a partition acquiesced in for any considerable length of time will estop any person joining in it, and accepting exclusive possession under it, from asserting title or right to possession in violation of its terms; and that if such a partition is made by .the husband of a married woman, and consented to by her, and is fairly and equally made with respect to her rights, it is a good defense against her and her heirs in an action by them to recover her undivided interest in any one of the shares allotted to the other cotenants.

Defendants were therefore entitled to the charges embodying these principles which were requested by them and refused by the court. Some question is made by the defendants in error that the defense of estoppel was not set up in the answer below. It is said that the cause was tided below on the theory that such a parol partition, followed by correspondent possession, vested the legal title in the allottees, and that no argument was made in favor of such a defense based on estoppel.

The arguments of counsel do not appear in the record, and it is impossible for the court to say whether the view here taken , was presented or not. Suffice it to say that the evidence admitted raised the issue, and presented the question of this substantive defense. Under the Code of Ohio, where evidence admitted clearly raises an issue not made by the pleadings, the parties have the right to have sdch issue submitted to the jury.

If objection is made to the form of the pleadings, an amendment will be permitted; but, if no amendment is requested, then the parties must be considered as having waived objection to the pleadings. In Hoffman v. Gordon, 15 Ohio St. 211, Judge Welsh, speaking for the supreme court of Ohio, said : “The evident object of the Code is to vest in the court a discretion, where it can be done without surprise or injury, to try the case upon the evidence, outside of the pleadings, and, if objections be made, to allow the pleadings to be conformed to the evidence, at once and without terms.” See Railway Co. v.

Whitcomb, 14 C. C. A. 183, 66 Fed. 915; Ely v. Topliff, 41 Ohio St. 357. More than this, it is by no means clear that the defense of es-toppel in pais was not justified under the general denial of the answer. In Kirk v. Hamilton, 102 U. S. 68, which is a leading case upon the subject of defense of estoppel in pais to the action of ejectment, it was held under a plea of not guilty that evidence to sustain such a defense was properly introduced, and that the defense was a valid one. We think, therefore, that the refusal to give the charges requested by the defendant already alluded to was error.

It is contended, however, that, because by the special findings of the jury that there was no parol partition, and no correspondent possession, the error committed in refusing the charges in respect to their effect could not have prejudiced the defendants, an'd cannot be made the' ground for a reversal. That brings us to the question whether, upon the issue presented with requests for special findings, the court below properly instructed the jury as to how they should proceed to determine whether paroí partition in fact was had.

We think that, in the absence of evidence to the contrary, the fact that cotenants of a tract of land have occupied the several portions in severalty for more than 50 years, with -the knowledge and consent of each other, and have exercised acts of exclusive ownership and control over the respective shares, without objection or claim on the part of other cotenants, raises a strong presumption of fact that there was an actual division by agreement, express or tacit, of the land, between the cotenants, according to the lines of exclusive occupancy, and that the defendants below were entitled to have 'the matter presented to the jury in this light.

Between the time of trial and the date of the alleged partition there was an interval of upward of 70 years. In such a case" it is obviously impossible to introduce direct evidence of a parol express agreement: to partition. The proof must necessarily rest upon the circumstances, and no circumstances could be stronger than exclusive possession of the several cotenants of portions of the land. ■ It seems to us that the defendants below had a real cause for complaint, in that the court did not sufficiently explain to the jury the weight of this presumption.

The defendants in effect asked the court to tell the jury that they would be justified in presuming a parol partition from the fact that, with the knowledge and consent of each other, they had taken exclusive possession of different tracts to which they were entitled in common, and had sold the same, with covenants of general warrant \ , or had exercised other acts of exclusive ownership or control, without objection by their co-owners, for more than half a century.

This the court refused, suggesting that the setting apart to one of the heirs, and his exclusive possession, might be entirely consistent with there having been no partition. Herein, we think, the court erred, and that the defendants were entitled to the charge as asked. The whole tenor of the cllarge given had a tendency to impress the jury with the idea, that the defendants were under the burden of showing by other circumstances than the actual exclusive possession in severalty, and subsequent acquiescence therein by all concerned, that there had been an express or facit agreement to partition.

In our opinion, no such burden rested on defendants; and after the exclusive possession in severalty by the heirs of the various parts of the common land, and general acquiescence therein, were shown, the jury might well have inferred a parol partition, unless other circumstances rebutted tlie presumption thus arising. Our view of the presumption that follows from an actual division and exclusive occupancy for many years is supported by the case of Jackson v. Miller, 6 Wend. 232, and the note of the learned editor, Mr. Freeman, in the report of the case in 21 Am. Dec. 316. See, also, Bogardus v.

Trinity Church, 4 Sandf. Ch. 732; Markoe v. Wakeman, 107 Ill. 251; Adie v. Cornwell, 3 T. B. Mon. 276-283. The judgment of the court below is reversed, with directions to order a new trial.