¶1It is not necessary to the determination of the present case, to decide the question whether a parol partition made by tenants in common, followed by an exclusive possession and claim of title by each of the share assigned to him for a period less than twenty years, will sever the tenancy in common, and give to each tenant the entire title of the portion so assigned to the exclusion of the others, for the reason that the judgment appealed from determining that Daniel Fleet was the sole owner of the lands described in the complaint at the time of his death should be affirmed, although it should be held that such partition, occupancy and claim did not confer such title. The referee finds that Daniel and James Fleet owned a farm as tenants in common, embracing the land in question; that they by parol, partitioned said lands between them, and established a boundary; that thereafter each occupied the portion allotted to him in severalty; that this occupation continued for some years; that Daniel gave to James a deed of the portion allotted to him, but did not receive a deed from James of his share. *512 The case leaves no doubt that it was agreed that one should be given. The referee further finds that, after the partition Daniel expended four thousand dollars and upward in the erection of a house and other improvements upon his share. That these facts gave Daniel the right to enforce the agreement for partition made with James is a proposition too clear for argument. It only remains to inquire whether, having acquired this right, he did any thing to deprive himself of it. It appears that at one time he called upon James and his wife for a deed; that his right thereto was recognized by them, but the execution was deferred on account of the illness of the wife. Some time after, James and wife proposed to Daniel to give the deed, to which he replied that he had changed his mind and did not want it. This declaration, unaccompanied by any agreement or consideration, surely could not deprive Daniel of his property, held either legally or equitably. It further appears that, after the death of James, Daniel told his heirs that he had never received a deed of the land, and that they had as much interest in it as he had. That some of them offered to quitclaim to him, and he declined receiving a deed. While these facts would preclude him or his heirs from claiming title by adverse possession after the lapse of the requisite time, they would not cancel or divest him of his title to the property. The counsel for the appellant insists that the referee erred in finding the fact that Daniel had given a deed to James. Having taken an exception to this finding, the question is presented to this court, whether there was any evidence authorizing it. It is an error of law to find a fact without any evidence, which, upon proper exceptions, may be reviewed and corrected in this court; but whether the finding is against the weight of evidence cannot be inquired into here. An examination of the evidence has satisfied my mind that, not only was there evidence in support of the finding, but that the referee was entirely correct therein. The judgment appealed from should be affirmed, with costs.
¶2All concur.