The opinion of the court was delivered, by
Thompson, J.There was no title in the defendants to the land in controversy until after the death of their mother in.1847, from whom it descended. After that time her husband, their father, was tenant by the curtesy until his decease, which took place in 1859. He had no authority to dispose of his wife’s land by will, and so far as he attempted it, the act was a nullity. After the death of their mother, the defendants made no partition of the land, but continued to occupy it by the line laid down between them in 1835 or 1836. That line was made, not by the sons, for they had no title or right of possession as against their parents. It was made by their father, dividing his own estate and that of his wife, as if it were all held in his own right, but manifestly for the convenience only of occupancy by the sons. It did not divest her title in her farm, or that of anybody else. This line, thus established, had no effect as a partition therefore. That the defendants continued to occupy it after their mother’s death, did not establish a partition of the property between them, when the plaintiff below obtained his judgments. What the effect of a continuous occupancy for a long period might be between parties under the circumstances of this case, it is not necessary to say; here it was continued only about two years before the plaintiff’s lien attached, after the title descended. There had been no parol partition in the mean time, and, as already shown, the line made by the father was no partition. It was proper, therefore, to reject the offer of testimony by the defendants, for if admitted, it would have amounted to nothing.
Judgment affirmed.