Gay v. Parpart,
106 U.S. 679 (1883)

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U.S. Supreme Court

Gay v. Parpart, 106 U.S. 679 (1883)

Gay v. Parpart

Decided January 8, 1883

106 U.S. 679


1. When a party offers in evidence an instrument concerning real estate which has been acknowledged or proved so as to be admitted to record and read in evidence, the burden of proof is on the party denying its execution. The fact that a person whose name is signed as a subscribing witness is alive and is not called to testify leaves a strong inference that its execution cannot be disproved.

2. A woman married a man by whom she became the mother of two children. She subsequently discovered that he had a wife living from whom he had not been divorced. He then made to her an assignment of a mortgage. Held that the assignment was a meritorious act and not impeachable for immorality of consideration.

3. The difference between a judgment and writ of partition at common law, and a partition by decree in chancery as it affects the title is that the former operates by way of delivery of possession and estoppel, while in the latter the transfer of title can be effected only by the execution of conveyances between the parties, which may be decreed by the court and compelled by attachment.

4. Some of the states confer upon their chancery courts authority to make such a conveyance by a master commissioner, or they provide that the decree itself shall operate as such conveyance and vest the title in the parties to whom the premises have been severally allotted; but where, in a suit in equity for partition, no such authority or provision exists, the proceeding, while it may be effectual as a division and an allotment of the property, does not pass the title thereto.

5. Where a decree erroneously declared the nature of the estate of each co-tenant, and three days thereafter deeds inter partes were made which do not follow the decree, and where, twelve years afterwards, a bill in chancery was brought to perfect the partition by compelling conveyances in accordance with the decree, the court may inquire into the equities of the parties arising out of the surrounding circumstances, and refuse to order conveyances in accord with the title as found by the former decree, when it would be inequitable to make such order.

6. If such former decree was made by consent of the party against whom the error was committed, and who received no valuable consideration, and if no one is interested but volunteers, or those who purchased with full notice of the facts, no order for conveyances will be made, but the parties will be left to rely for their title on those which were interchangeably made to each other in accordance with the respective allotments.

7. No person can be an innocent purchaser for value under the first decree who was attorney for the plaintiff, and who purchased from him while the suit to enforce it was pending.

Page 106 U. S. 680

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