delivered the opinion of the court, January 5th 1880.
From the evidence in this case, there is no doubt about the rectitude of the verdict. Isabella Hurst, widow of Henry Hurst, took possession of the property in dispute some forty-three years ago; *369and, since that time, she and her vendees, with the knowledge and assent of the heirs, have occupied it, made valuable improvements upon it, and in all respects regarded and treated it as though they were the absolute owners of the fee. Nor is there much doubt, but that she entered under a family arrangement, or parol partition, by which she was to have the Meadville lots in fee, in lieu of her dower.
That she so entered, is rendered probable from the fact, that of property of her husband, in other counties than Crawford, she claimed no dower, but permitted his heirs to divide it among themselves as they saw' fit; besides this, however, there was positive proof of such an arrangement. Whatever, therefore, "might have been the effect of the partition, there was some evidence to submit to the jury, that she held as owner of the fee and not merely for life.
Nevertheless, if the decree in partition was valid and binding upon the parties, if thereby a life estate only, vested in Mrs. Hurst, it would be all but conclusive evidence, that she not only entered but continued, during her life, to hold under that decree; and this, of course, would go far to defeat the defence of her vendees, so far as it depends on the Statute of Limitations.
Mrs. Hurst died in 1861; and if, under the decree, she entered as tenant for life, the owners of the remainder in fee could have no posessory action until her death, and the statute could only begin to run from that time: Ege v. Medlar, 1 Norris 86. If, however, that decree gave her no "right, then her entry was without right, and her claim and possession being adverse, the statute would give her a good title.
Now, the court held, that no title vested in her by force of the decree in partition; that, so far as it was concerned, she entered without right; that it was inoperative, except in so far as it was adopted as the basis, of the family settlement already referred to. In this we think the court was right.
In the first place, the jury appointed, under the proceedings in partition, to make division of the-property, finding that they could not make an equal partition of the estate, divided it as best they could, and appraised the purparts. Here, under the Act of 29th April 1832, their power ended. They proceeded, however, to allot the several purparts to the widow and heirs nominatim ; this of course, they had no power to do. This power belonged to the court alone, and that, only after choice by the heirs, in regular order. Nevertheless, the court adopted this allotment, and, though irregular, it might have been valid if the heirs had come into court and accepted under the decree; but they never did so; and it is hardly necessary to say, that, without such acceptance, the partition came to nothing. Neither court nor jury could impose owelty on either of the heirs, without his or her consent; neither could *370the widow he compelled to accept less than her dower. In the case of McClure v. McClure, 2 Harris 134, it is said, by Mr. Justice Coulter, that the judgment in partition does not even divest the title in common, until payment of owelty be made to the other parties in proportion to their respective rights; and that the taker’s title depends upon his making payment, and not upon the judgment in partition. It was also held, in Harlan v. Langham, 19 P. F. Smith 235, by our brother Sharswood, the present Chief Justice: “ That a partition, whether by action or proceeding in the Orphans’ Court, leaves the title as it found it. It dissolves tenancy in common, but it does not divest title in common, until payment of the shares of the other owners.” To the same effect is Smith v. Scudder, 11 S. & R. 325; and Bavington v. Clarke, 2 P. & W. 115. As, in the case in hand, neither of the heirs so much as accepted a purpart, it follows that the partition came to nothing; and that the title to the property remained just where the partition found it; that is, in the heirs in common, charged with the widow’s dower. To us, then, it seems clear, if the widow and heirs adopted this partition at all, it must have been by arrangement among themselves, and not by force of the decree of the court; and if this be so, the whole matter rested in parol and was properly determined by the jury, under the instructions of the court.
There is another difficulty in this partition, which to me seems insuperable. Notwithstanding the jury could not make equal partition between the widow and heirs, and so were forced to make a valuation, in order to equalize the purparts; yet one of those purparts, so valued just as the others, was assigned to the widow, without any consideration of, or reference to, the fact, that her estate was of one-third of the whole for life; and, furthermore, by that assignment and valuation, she became entitled to owelty. Here then, is certainly a fatal defect in these proceedings, for dower is not set off to the widow ; nor is there a pretence in that direction, but she is treated as an heir, and allotment made to her accordingly.
But again, if she may, in any case receive owelty, it follows, that she may be charged with it; but she could not be so charged without her consent, or peradventure, she might be charged out of her dower. She must therefore have the right of choice along with the heirs, but for this, no provision' is made in the statute; and this for the very good reason, that her estate is but for life, hence not equal to that of an heir. If she were required to pay owelty, it might be more than her estate would be worth, for it might be determined with her life, the next hour after payment; and the same objection lies to her receiving it.
How can a life-estate possibly be equalized with a fee ? Had the partition been regularly made; had the purparts been numbered and valued, and thus returned, as they ought to have been, to the *371court for allotment, it is certain the widow could not have been called upon to choose one of the purparts, but her dower would have been apportioned among the several allotments, and so it would have remained charged upon the whole estate until her death. Certainly this partition, at least as to the widow, was utterly worthless and void.
There is nothing else in the case which requires comment.
Judgment affirmed.