1. The part of,the statute of lihíilátions on which the defendants relied, is the 5th section, which limits actions on express contracts, not in writing, to three years from the time the “ right of action shall accrue.” Had the contract which is stated in the declaration been in writing, the right of action would not have accrued until the deed was *122S'verl the plaintiff and his wife to the defendant Harriet was not bound to pay for the land until she received a title. This was in 1837, and about one year before the commencement of the suit; This statute, therefore, furnished no protection to the defendants.
2. As to the statute of frauds. Every part of the contract is alleged to have been perfected between these several heirs, by deeds duly executed, except the conveyance from Mrs. Baxter to Harriet. Her title, in all other respects, and that of the other joint heirs, had been confirmed, according to the agreement. The several parties could not replace themselves in statu quo. With the exception specified, each had parted with a joint right in the lands allotted to the others. The provision in the statute of frauds, on which the defendants rely, requiring agreements for the sale of lands to be in writing, could not have been interposed, if Harriet had sought relief in a court of equity, prior to her marriage. The arrangement had then become obligatory. The right to enforce it was vested. It is not necessary to refer to any of the numerous cases, which go to prove, that such a part fulfilment takes the case out of the statute, and that a court of equity will decree a specific execution of what remains to be performed, in the same manner as if the contract had been in writing. The plaintiff and his wife were under the same obligation to execute the contract specifically, as they would have been, had it been in writing and signed by all the heirs, notwithstanding the provisions of this statute. The fulfilment on the part of the plaintiff and his wife, in pursuance of the contract made by her, while she was sole, which they were bound to perform, entitled them to the sum stipulated, unless some other objection were interposed. The parol evidence offered was not precluded by this statute.
3. The last ground taken to the admission of this testimony, is, the statute regarding the settlement of estates. The 29th section authorizes the heirs of an intestate “to agree on a division, and present the same in writing, under their hands and seals, to the court of probateand provides, that such division shall be accepted and received for a settlement of the estate, on being acknowledged before the court of probate, or a justice of the peace, and recorded in the said court. This, however, is authorized merely as a substitute for the division *123by distributors, as required by the act, on a settlement made by the order of the court of probate. It extends to all the estate, both real and personal. It is often less expensive, and more satisfactory to the parties, than a distribution which is coercive. But it was not intended to deprive coparceners or tenants in common of any of the powers, which they have at common law, to divide or alienate their estates. The division made by the heirs, under the agreement now in question, was one with which the court of probate had no concern, and is of a different character from that contemplated by the statute.
For these reasons, we consider the objections to the admission of the evidence offered, which are stated in the bill of exceptions, as insufficient; and advise, that the judgment of the county court be reversed.
In this opinion the other Judges concurred,except Church, J., who was not present.Judgment to be reversed.