This action of ejectment was brought to recover possession of the undivided half of the northerly half of eighty acres of land, part of a larger tract of which, inter alia, the plaintiff’s father, Robert McKnight, Sen., died seized in 1860. A prima facie case for plaintiff was made out by showing that in 1875, in the division of his father’s lands, the eighty-acre tract was *61allotted and conveyed, by the other heirs, to himself and his brother William McKnight.
In substance, defendant’s contention was that at or about the time of said division, the plaintiff Robert McKnight and his brother William made a parol partition, between themselves, of said eighty acres, adopting as their division line a lane which, crossing the tract about midway divided the same into two very nearly equal parts of about forty acres each ; that in pursuance of said partition and possession taken and held thereunder plaintiff became sole owner of the southerly part of said tract, and his brother William sole owner of the northerly part, —the land now in controversy; that the last mentioned piece, thus acquired in severalty by William McKnight, was after-wards sold by the sheriff, as his property, and conveyed to A. L. McCartney under whom defendant claims. In support of this contention considerable testimony, direct as well as circumstantial, was introduced by the defendant; and on the other hand the plaintiff introduced rebutting evidence, tending to show that no parol partition of the eighty-acre lot had ever been made between him and his brother William. The alleged parol partition, on which defendant relied, thus became the controlling question of fact in the case. It is not our purpose to either review or summarize the testimony bearing on the subject, but an examination of the record has satisfied us that the cause could not have been withdrawn from the jury. The question was fairly submitted to them by the learned trial judge in a clear and able charge, which, considered as a whole, is free from any substantial error. We find nothing in the record that would justify us in reversing the judgment.
Judgment affirmed.