[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 246
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 247 It is not open to discussion in this state that a parol partition may be made of lands owned by tenants in common, provided each party takes and retains exclusive possession of the portion allotted to him. (Wood v. Fleet, 36 N.Y. 499; Mount v. Morton, 20 Barb. 123; Ryerss v. Wheeler, 25 Wend. 434;Jackson v. Livingston, 7 id. 136; Jackson v. Christman, 4 id. 277; Jackson v. Sellick, 8 J.R. 270; Jackson v.Harder, 4 id. 202; Freeman on Co-tenancy and Partition, § 398; Knapp on Partition, 465.)
A tenancy in common exists when there is merely unity of possession, either with or without a union of other interests. The result of a parol partition, when carried into effect by each tenant taking exclusive possession of his own share and surrendering possession of all the other shares according to the allotment, is to destroy the unity of possession, and thus the *Page 250 parties by their acts only, without a deed, cease to be tenants in common of the whole, and each becomes the tenant in severalty of a part. The unity of possession is severed and the partition is effected by the acts of the parties in taking exclusive possession of their respective shares by common consent. While the form of the transaction is a parol agreement followed by the act of taking exclusive possession, each of his part, the substance is the act itself. A parol agreement simply cannot terminate the unity of possession. Standing alone it would be ineffectual for any purpose. The partition springs from the act of each tenant, with the consent of the others. Although practically a substitute for, it is not equivalent to mutual conveyances, which would sever the unity of possession, even if not followed by actual possession. No title is transferred by a parol partition, even when it is carried into effect, as it acts only upon the unity of possession and by ending that accomplishes the object in view. It ascertains and defines the limits of the respective possessions. Possession under a tenancy in common, isper mie and not per tout, and as each tenant owns an undivided fraction, he cannot know where that fraction is until a division has been made. (4 Kent, 367, 371; 2 Black. Com. 191, 194.) While his title remains the same after partition as it was before, his part is separated and identified by the division. (Allnott on Partition, 124, 129; Corbin v. Jackson, 14 Wend. 621, 625.) It follows from these views, which are supported by the authorities already cited, that a right in the nature of an easement cannot be created by a parol agreement for the partition of lands, because that involves something besides a severance of the unity of possession. It implies a grant, by which the right is either reserved or conveyed. (Wiseman v. Lucksinger,84 N.Y. 31.) It is something carved out of one parcel of land, the servient, for the benefit of another, the dominant. "It is an interest in or over the soil," and "can only be acquired by grant, and ordinarily by deed * * * a parol license being sufficient for the purpose." (Washburn on Easements, 3-7.) Considering the nature of an easement and the means necessary to create it, we do not think *Page 251 that a right of that character was acquired by the owner of the seventy acres with reference to the remainder of the tract.
If, by virtue of the parol agreement, the right in question was to belong to Elijah Millard, as a personal interest independent of his ownership of the seventy acres, it was not an easement, proper, but an estate in the land itself. The right to take a part of the soil or produce of land, known as profit a prendre, requires a grant, or prescription from which a grant is presumed. (Pierce v. Keator, 70 N.Y. 419, 422; Post v. Pearsall, 22 Wend. 425, 433; 2 Washburn on Real Property, 276, 338; Rapalje Lawrence Law Dict. title Profit.) It is inconsistent with possession or ownership in severalty, which is the sole and exact result of an effective parol partition. When unity of possession ends, possession in severalty begins and the partition is accomplished. It cannot fall short of this result, if it takes effect at all, and it cannot go beyond it.
If the right to enter and take away apples, as contended for, was merely a parol license, it was revocable at pleasure and the conveyance of the hundred acres without reference thereto effected a revocation. (Cronkhite v. Cronkhite, 94 N.Y. 323;Shepherd v. McCalmont Oil Co., 38 Hun, 37; Washburn on Easements 7.)
But, whatever the nature of the right, as claimed, was, we agree with the learned General Term that, as it was not, and could not be, made a matter of record, the recording act, supervened and protected the plaintiff. Subsequent to the parol partition the parcel of one hundred acres was twice conveyed by deeds duly recorded, neither of which contained any reference to the right or claim in question. There was no visible sign of its existence and nothing apparent in the use or possession of either tenement to put a purchaser upon inquiry, while the record title contained no suggestion upon the subject. If the verbal agreement had not been limited simply to one-half of the apples, but had embraced one-half of all the annual products of the farm, it would have been the same in principle. Unless the right was a parol license it required a grant, duly placed upon record, in order to be valid *Page 252 against one purchasing in reliance upon the recording act. (4 R.S. [8th ed.] 2469.) The will of Elijah Millard was not constructive notice to the plaintiff because, aside from any other question, it was not recorded in the county clerk's office, but in the surrogate's office only. Section 2633 of the Code of Civil Procedure was not in force on the 26th day of March, 1880, when the plaintiff's deed was recorded. (Code C.P. §§ 2633, 3356.)
We think that the judgment should be affirmed, with costs.
All concur, except HAIGHT, J., not voting.
Judgment affirmed.