¶1(after stating the facts). The sole question arises upon the ruling of the court below. Whether the alleged parol agreement is valid under 1 Comp. Laws, § 2431, which requires the division of a line fence between unimproved lands to be in writing, and whether one in possession of land under a tax title, the validity of which is in dispute before the auditor general, and which is after-wards held to be invalid, is in position to make a contract for the division of a line fence binding upon the then owner in fee, and subsequent grantees, we need not determine. The testimony of the plaintiff himself shows that the agreement relied upon was not absolute, but was conditional upon the tax title being held valid. Defendant testified that the tax-title owner said:
“ When this thing was settled up [the validity of the tax title], he would go on and build his part of the fence. I suppose he meant when his tax-title claim was cleared up.”
¶2He further testified that the tax-title holder did not agree to build it at that time (the time of the alleged agreement), and that he did not positively agree to do it at any other time. The tax-title claimant testified that he did noi recollect any positive agreement. Under this evidence, there was no agreement binding upon the plaintiff’s grantors or upon himself.
¶3The judgment is affirmed.