Per Curiam,
Mason, Chief Justice.This was a petition for the partition of lands under the statute. All that is required by law is set forth in the petition. The answer of the defendant admits the truth of all the allegations of the petition, but sets forth in avoidance thereof, an agreement between the parties to divide the tract in a particular manner. To this there is a general replication, and the whole case submitted to the court on petition, answer, replication and testimony. The court dismissed the petition, whereupon an appeal was taken to this court.
The defence set up by the defendant not being responsive to the bill, requires to be proved. The testimony fails to sustain that defence. The evidence is almost entirely limited to Parker’s admissions and those admissions prove too much. They show that the agreement between the parlies was that if Stewart’s share of the tract embraced any of Parker’s improvement, that he, Stewart, was to convey to Parker at a stipulated price, all of such improvement thus embraced ; that Parker had offered to convey in accordance with the terms of such agreement, but that Stewart had refused (o do so. Having refused to comply with that agreement, he is certainly in no condition to avail himself thereof as a defence. The decision of the court below dismissing the petition was therefore erroneous.
Decree of dismissal sot aside and case remanded to the District Court of Jefferson county.