1. Where, in apportioning a tract of land among' several common owners, the same identical portion is set apart severally to two distinct persons, and they accept land acquiesce in the partition proceedings as having the effect of making-them tenants in common of that portion, a mere parol agreement between them to divide in kind the land thus set apart, but which was never in fact carried out, would not authorize a. successor in title of one of them to maintain ejectment against, a successor in title of the other for a small parcel of the land, the same not appearing to be more than a fair proportion of the property which the defendant, as a tenant in common with the plaintiff, would be entitled to occupy.
2. Under the facts disclosed by the record there was no error in-, directing a verdict for the -defendants. Judgment affirmed.