Feb. 21, 1834.] OF PENNSYLVANIA. 420
[Gratz v. Gratz.]
to the award. This sort of interference by us, occurred more
than once, of directing things to be done, without doing thorn
personally by ourselves. They agreed that western lands should
be sold; we did not judge of the price, but directed that power
should be giveu to agents to sell accordingly. These acts were
not at all distinguishable from the one in question. There was
something like a rough calculation made by Ilymau at the meet-
ing, as to what he would have to pay for his part of the iucum-
brances to have his property clear. They parted with the ex-
press determination to carry that partition into effect.
No distinction appeared at any time between the questions
that arose after the submission and those before. One arose
entirely subsequent, and might be considered altogether inde-
pendent of the original controversy. While we were holding
uuder advisement how money belonging to a foreigner should be
disposed of, we were informed that Joseph Gratz had taken out
administration to Jonas Heirshel Black; we directed them to
be cancelled, and Simon and Hymau Gratz to administer. The
order I believe was acquiesced in. I know of no instance of an
union between the parties except when we directed ; and when
we did direct, generally no want of acquiescence. Towards the
last, when there were mutual awards, there sometimes was diffi-
culty. We ordered conveyances as to property of which Hyman
had not the title. Jacob Gratz had the title to No. 6, and we
directed the conveyance. Hyman Gratz having no title to the
property, we directed that deeds should be executed, and handed
to us as escrows, and remain with us to be delivered over to
Hyman. They never were so delivered. They were to be,
when a condition should be performed which we never consid-
ered complied with.
*My impression is I have no recollection of anything r*49i -i
that prevented the delivery of the deeds for the corner L
property, when that for the Harper property was delivered,
except the existence of incumbrances given by Simon alone. I
have no recollection of Simon Gratz stating, that this mode of
subdivision would be injurious to the whole property, or that
this block ought not to be divided. I have nothing on that
subject that ought to be stated as evidence. There is nothing
at all on my mind like the first there is a vague impression
that something was said about the block going altogether ex-
cept what is said in his letter of the 3d of February.
Charles C"^auncey, Esquire, was also sworn, and gave the fol-
lowing evidence. I think Mr. Beates called on me after one of
the gentlemen for the deeds, and I delivered them to him. My
recollection, as far as it goes, induces me to suppose Mr. Bin-
ney's statement is accurate. We did distinctly state in the first
421 SUPREME COURT [Philadelphia.
[Gratz v. Gratz.]
instance, that we did not consider the partition of real estate
within our province, and said, " if you cannot agree among your-
selves, that is a matter you must go into the courts for." The
agreement was made exactly as Mr. Binney has stated, in our
presence. Subsequently, I think, there was at one time some
attempt made to obtain a valuation. Paul Beck, Mr. Richards,
and Homer were named ; perhaps that was as to the rents that
should be paid by Simon Gratz & Son for the store occupied by
them. I rather think it was. I have no recollection of any-
thing material in addition to what Mr. Biuney has stated. We
inspected the property, and heard the statements of Mr. Baker
and Mr. Beates. I believe they were brought by Hyman
Gratz before us.
I think the non-delivery of the deeds for the undivided third,
was caused by the existence of incumbrances. The incum-
brances were for the benefit of the firm.
Isaac Prince, who was likewise examined, testified as follows :
Mr. Simon Gratz has held the parts allotted to him by the
division, No. 1, and No. 3, and No. 6. He is in the habit of
getting the rents, from since the twelfth of February. The
division No. 4, is occupied as a store by Simon Gratz & Son,
the rent of which was credited to S. & H. Gratz up to twelfth
of February, 1830. He has had nothing to do with No. 5 ; it
has been unoccupied shut up for a long time. I do not know
where the keys are. They are in the possession of Mr. Hymau
Gratz, I believe.
Mr. Oak man occupies No. 2. Walls have been run up by Mr.
Simon Gratz, so as to make the properties distinct, between
Nos. 4 and 5, and between 4 and 3 and 2.
Mr. S. Gratz made leases of the property held as his share.
I am familiar with his concerns. I know of no act of owner-
ship exercised by him on the parts said to have been allotted by
him to Hyman Gratz, since the division.
I should say between three and four years ago, this dispute
was before referees. At the time of. the dispute, No. 5 M'as
occupied as the counting-room of S. Gratz & Brother ; No. 4,
f*422l as *^ e store f ^' *Gratz & Son ; the other properties
J were under rent. Hyman has not, that I recollect, for
some time interfered with Simon Gratz's possession. I occa-
sionally collected the rents of the property, previous to twelfth
The privy in the alley has not been used by Mrs. Cox for a
great many years. Now it is used as a scale room for weighing
has been for many years. The privies in actual use are five,
as on the plan.
Privy No. 5, is used by Simon Gratz & Son. The alley next
21, 1834.] OF PENNSYLVANIA. 422
[Gratz v. Gratz.]
Mrs. Cox is not used at all, except to go to the scale room, by
S. Gratz & Son.
I do not recollect who uses No. 4 ; we have no key of it. I
believe it is not used.
After the division of the property, twelfth of February, 1830,
Mr. Oakman called to pay his rent, which I refused to receive,
from the belief that it was not the property of S. Gratz.
Frederick Beates was also sworn and examined, and stated as
follows : Hyman Gratz called on me of a Friday, twelfth of
February, 1830. He stated he wished to see Mr. Chauncey, to
get some papers necessary to draw a deed of partition between
S. Gratz and himself. Hyman Gratz gave me a rough plan of the
division. He stepped with me to Mr. Chauncey's to get the
papers, which I received from Mr. C., and having glanced my
eye over the plan I got from Mr. Chauncey, and the one from
Mr. Gratz, I found they were not so distinct as to enable me to
go on and draw the deeds. Some lines were not mentioned,
and I said there must be a survey. A deed, and the report of
Mr. Baker, and a draft, I received from Mr. Chauncey. Find-
ing a survey necessary and a proper draft, Mr. H Gratz
returned with me to Third and Arch street ; he left me then and
said he would go to Mr. Haines and get him to make the neces-
sary survey and draft. On coming home and looking at the
papers I got from Mr. Chauncey, I found there was a privilege
given to Simon Gratz in a lot, that I apprehended was to be
allotted to Mr. Hyman Gratz, that I did not apprehend was in-
tended to be given to him. I met Hyman Gratz next day,
Saturday, in Fourth street, and told him I discovered a differ-
ence between the papers. He told me it was impossible. He
called on me on Monday to satisfy himself, I suppose about mj
being correct. On his perusing the papers he found I was cor-
rect. He said it was not right seemed a good deal chagrined
and mortified. He then wished me to return the papers again
to Mr. Chauncey. This note I wrote the sixteenth of February,
" At the request of Mr. Hyman Gratz, I return you the in-
I was requested by Mr. Simon Gratz to get them again. I asked
Mr. H. Gratz for some explanation, and he said he would have
nothing to do or say with it that was when I had Haines' draft.
I can't exactly say when I got Haines' draft. I did not get it fora
*cousiderable time after the other. He called at the r*49<vi
office and treated this as if he had no concern with it.
" Charles Chauncey, Esq. Dear Sir : Please let me have the
draft made out by Mr. Hyman Gratz, of the Market street
423 SUPREME COURT [Philadelphia,
[Gratz v. Gratz.]
property ; neither of them I have, show the understanding re-
specting the division walls. Yours humbly,
FRED. BEATES. 23d Feb., 1830."
This was after I got an explanation from Simon Gratz. I
don't know whether I had Mr. Haines' at the time when I got
back the papers. This was the draft sent, with the pencil-mark
upon it. It was necessary to incorporate it in the deed.
The deed was signed by Simon Gratz, and left with me to be
signed by Hyman Gratz, and then consummated and witnessed.
It was left with me a considerable time. I told Hyman Gratz
when he came there, it was left by his brother for signature.
He said he had nothing to do with it. The dot is often made
by the magistrate when one of the parties executes and ac-
knowledges the deed.
I believe I got Haines' survey from him.
I was examined before Messrs. Binney and Chauncey. I can't
say who took me before them.
Samuel Haines was also called as a witness, and gave the fol-
lowing testimony : In the early part of February, 1830, Hyman
Gratz called on me and said, he and his brother were about
making a division of their property at the corner of Seventh and
Market street, and wanted a survey and plan. The weather was
cold and unfavourable, and I was prevented from going ; and a
message was sent to me to make haste. I understood the mes-
sage to be from Hyman Gratz's counting-house. I afterwards
went, on the fifteenth of February. Both of the parties were
there during the time of making this survey and measurement.
I made a plan of it. That plan was delivered by me to some
person : I don't remember. Previously to making the plan, I
received a message, as the person said, from Simon Gratz.
The plan was eventually in the hands of Mr. Beates when I
attended to give him an explanation of it, to enable him to draw
the deeds as I understood it. Mr. Hyman Gratz was the first
person who called on me. I had no papers but a little plan.
Everything I understood as coming from Hyman Gratz so
much, that I did not pay much attention to it. I do not know
from whom I got the papers.
I took a measurement on the ground, marking the lines on
I think No. 1 is the plan. It is likely I got this No. 1, at
the counting-house, while I was on the ground, for the purpose
of measuring. I think Mr. Simon Gratz requested me to be
careful of it, and return it to him or somebody else.
The No. 1 is the only plan I ever had in my possession, I
think. I say with caution, that I think I went to the ground
Feb. 21, 1834.] OF PENNSYLVANIA. 423
[Gratz v. Gratz.]
without one. My impression is, I returned it to Mr. Simon
Gratz's messenger. A messenger came to me, as I understood,
from Simon Gratz, to hasten *me. The messenger was
a young man. He called more than once. I think it
was the same person who first called.
I think it was not Mr. Prince who called. There were young
men in the counting-house that I took for M. Gratz's sous, and
I thought it was his son that called on me.
The bill of exceptions returned with the record, after the
introductory part of it, and after referring to certain evidence
which had been given by the parties on both sides, proceeded
"And in the further progress of the trial, the plaintiff offered
Michael Baker as a witness, who was qualified, aud testified as
" ' My impression is, that both were together. I objected to
having anything to do with the property. I was told by both
those gentlemen that I was to take the plan, and divide the
property into six numbers. I divided the property equitably,
as I thought, and returned a report to that effect. This is the
report. Nos. 2, 3, 4, and 5, is the property that was most suit-
able together '
"At which period of the testimony the witness was stopped
by the counsel for the defendant, who objected to the last clause
of the witness's testimony (the objection to be considered as
having been made before the witness gave that part of his tes-
timony, as opinion of the best mode of dividing, &c.,) and after
argument, the testimony objected to was overruled by the court;
whereupon the witness was withdrawn by the plaintiff's counsel
as to any further testimony, and the plaintiff's counsel excepted
to the opinion and decision of the judge.
"And in the further progress of the trial, the plaintiff's coun-
sel offered to read, as rebutting evidence to the jury, sundry
documents, letters, and other papers, (prout letters, documents,
and other papers annexed,) of a date subsequent to the com-
mencement of the suit, but the same was objected to aud over-
ruled by the judge ; the same being letters, documents, and
other papers, to and from the parties in the suit, and touching
the premises in question, and matter in dispute, and similar let-
ters, documents, and other papers, as to dates, having been read
previously by the defendant's counsel, without objection by the
plaintiff's counsel, and without it having been adverted to by the
judge that they were dated since the suit brought. Whereupon
the counsel for the plaintiff excepted to the decision and opinion
of the court in objecting to and overruling such evidence so
offered by the plaintiff's counsel."
424 SUPREME COURT [Philadelphia,
[Gratz v. Gratz.]
In the further progress of the trial, before the judge charged
the jury, the counsel for the plaintiff requested him to instruct
the jury as follows : to wit,
" 1. The parties have not made a legal partition of their joint
estate ; because there must be a writing signed by the parties or
by the plaintiff, or by an agent thereto lawfully authorized by
him, granting, assigning, or surrendering the two-thirds of the
premises to Simon Gratz in severalty.
l~*42 r ~l *" ^' There i g n t a sufficient writing signed by the
' parties or by Hyinan Gratz, granting, assigning, or sur-
rendering the two-thirds of the premises to Simon Gratz in
" 3. There is not a sufficient writing signed by any agent of
Hymau Gratz, thereto lawfully authorized by writing, granting,
assigning, or surrendering the two-thirds of the premises to
Simon Gratz in severalty.
" 4. The two-thirds of the premises have not been granted,
assigned, or surrendered to Simon Gratz by act and operation
*' 5. That any parol agreement by Hyman Gratz sufficient to
grant, assign, or surrender the two-thirds of the premises to
Simon Gratz, must be found by the jury to have been partly
performed by Hyman Gratz ; otherwise it does not vest the
two-thirds of the premises in Simon Gratz in severalty.
"6. That any possession of Simon Gratz, given in evidence
by him as part performance of such agreement, must be a pos-
session of the two-thirds of the premises obtained by the mutual
consent of both parties, and delivered or assented to by Hyman
Gratz, in pursuance of and in order to execute such parol
" 7. That the instructions by Hyman Gratz to Beates to pre-
pare the deeds, to Mr. Haines to make a survey of the premises,
and the marking the division lines by Mr. Haines, are not a
part execution and performance by Hyman Gratz of the parol
agreement, unless the jury are satisfied that afterwards Simon
Gratz went into the possession of the two-thirds of the property
by the plaintiff's consent.
" 8. That the receipts of the rents by Hyman Gratz, given
in evidence on the part of the defendant, are not a part per-
formance or execution of the parol agreement by the plaintiff,
nor are they in law a taking possession of the houses, for which
the rent was paid as the separate property of the plaintiff.
" 9. That the award of the seventeenth of February, 1830,
vests no separate estate in the parties, because it does not direct
that mutual releases, conveyances, or assurances be executed by
Feb. 21 1834.] OF PENNSYLVANIA. 425
[Gratz v. Gratz.]
" 10. And that if it had so directed, it would not have
been binding on the plaintiff, unless acquiesced in or executed
"11. That the-estate of the parties in these premises was by
the title deeds to Simon Gratz, and the entries in the books of
S. and H. Gratz, an estate in joint tenancy.
" 12. That the estate of the parties in these premises is em-
braced within the provisions of the statute of frauds and per-
" That if the court should be of opinion that the estate of
these parties was such an estate as not to be within the statute
of frauds and perjuries, then the plaintiff's counsel requests the
court to charge the jury.
" 13. That the estate of the parties was an estate in joint
tenancy, and that in such case partition of such estate could
only be made by these parties by deed.
" That if the court should be of opinion that the estate of
the parties *was not within the statute of frauds, and r^ofo
was not an estate in joint tenancy, but an estate in "-
which they were tenants in common, then the plaintiff's counsel
request the court to charge the jury.
" 14. That the partition could then only be made bv these
parties, by a parol agreement, accompanied by the possession
of the two-thirds of the premises delivered to Simon Gratz by
the plaintiff, or assented to by him, in pursuance of the oarol
His honour Judge Hallowell proceeded to charge the jury as
" This is an action by Hyman Gratz against Simon Gratz, to
effect a partition between these parties, who are joint tenants or
tenants in common ; the plea is, that they do not hold together.
"The question between these parties can be settled on fair
and simple principles. Much has been said in relation to the
statute of frauds, and a parol agreement, and if the plaintiff can
recover on an equitable estate.
" I shall say nothing on part performance or ouster. There
is matter in the cause which can settle it without either. And
I shall confine myself pretty much to what is called the sub-
mission and the award.
" These parties were partners ; the partnership was dissolved
in January, 1827. They were at variance, and they resorted to
a domestic tribunal, in order to settle all things in difference that
had, might, or should occur between them. (The judge here
read the submission of the 8th of June, 1827.) This submission
was signed by the parties and other members of the family.
" Mr. Binuev and Mr. Chauncey tell you of their idea of the
426 SUPREME COURT [Philadelphia,
[Gratz v. Gratz.]
cast of the writings. But we are to judge not merely by the
writings, but by the acts of the parties. They tell you of the
transactions of the parties, of their discord, &c. ; they were
obliged to call their friends together.
"In 1830, Hy man was desirous of dividing the property.
He drew a plan; sent it to Simon; they could not agree; one. or
other of them, no matter which, called these gentlemen together;
they proposed the referees should divide it; the referees said no,
we do not understand the business; the name of Mr. Baker was
suggested, I believe, not by the referees, perhaps it does not
appear by whom, and agreed to ; he took the plan, made a di-
vision, and when the division was made, the parties appeared
before the referees; Simon said he did not like the division;
made some objection ; Hyman said it was a fair division, and
after some conversation, Hyman said to Simon, you may have
your own choice; and before they separated, the division by Mr.
Baker was agreed to by both parties. Hyman was well pleased ;
Beates was spoken to, and Haines was spoken to as to the
survey. On Friday, the 12th of February, Hyman suggested
to Simon that there was some difference, or made some observa-
tion in respect to a privilege or alley. However, there was
r*497~| sorae *conversation in respect to a privilege or alley.
I Hyman said it could not be so. On Monday, Hyman
said he was not satisfied. Some days after he wrote a note that
he was not agreed, and would retain his one-third interest. Mr.
Binney drew up instructions to Michael Baker how to conduct
himself in making the division.
" On the afternoon of the seventeenth, the referees and par-
ties met. Hyman Gratz exhibited a long argument in writing,
containing reasons why that partition should not stand, and why
it should not be carried into effect. The referees, a few days
after, wrote to the parties, that they had considered the subject,
and that the partition should be carried into effect. On the 3d
of March, 1830, Hyman Gratz writes a long letter to the referees.
I intended to have read some of these papers, but will merely
refer to them. On the 17th of February, the referees awarded
that the agreement should be carried into effect. To the 3d of
March, the referees were under an impression that it was car-
ried into effect. On the 3d of March, Hyman Gratz begs the
referees would review the order they had made; it was reviewed,
and on the 2d of April, they wrote a note to Simon and Hyman,
that after much reflection, they could not interfere. On the
17th of February, they awarded; they reviewed, reflected, and
ordered the award to stand.
" The only real question then is, whether this determination
by these gentlemen was conclusive between the parties and is
Feb. 21, 1834.] OF PENNSYLVANIA. 427
[Gratz v. Gratz J
conclusive ; if it be, by the plea the parties do not hold together,
and the action cannot be supported.
" It is said first, that it is not within the submission. If there
be any doubt we must take into consideration the situation of the
family, and say whether it is not the true meaning of these par-
ties that it should operate on all differences between the parties.
Many things occurred afterwards : they were bound to go to
these referees for anything they could not agree among them-
selves about. The agreement of 1827 did not oblige the parties
to go before the referees for anything they could agree about
themselves, which is exemplified by the trust lands, and one in-
stance where a writ of partition was resorted to. Was this then
within the submission ? Had the referees jurisdiction of the
matter in the manner they took it up ? After Hyman was dis-
satisfied, resort was had to the referees by Simon : both go there :
Hyman does not say, you have nothing to do with this matter;
you will find that he argues this matter, and endeavours to show
that this partition should not be carried into effect. He does
not say it is coram non judice, but he submits to their jurisdic-
tion; both parties do; and Hyman never intimates any want of
authority on their part. Mr. Binney says he does not recollect
of any such objection until very late. Mr. Chauucey the same.
When a man comes into a forum, his first thing is to plead to
the jurisdiction, which he must do, or he is concluded. My
opipion is, that on the agreement of June, 1827, the documents
and general conduct of the parties, these gentlemen had juris-
diction to do what they did, to make the award that this
*partition by Michael Baker should be carried into effect, r*/t 90-1
They have shut up a great many things by this award. "
Whether the agreement by parol of the 12th was binding, was
shut up by the award, for it was competent for Hyman Gratz,
to have said to the referees, you are lawyers, this agreement was
by parol, and void, and I ask to be exonerated ; he does not ;
there is no knowing what might have been their decision ; but
everything was shut up and concluded by the award.
" My opinion is that this matter, whether the partition made
by Michael Baker was valid or not, was within the jurisdiction
of the referees, and their decision is binding and conclusive be-
tween the parties. My opinion is founded on the award, and
that it is binding and conclusive. A number of other points
have been submitted to me by the plaintiff's counsel, and they
may consider that I decide them in their favour, except so far as
they are qualified by the special charge now given. For the
matter of the award on which I have fully charged, is sufficient
to enable you to make up a verdict, which I advise you to find
for the defpudant."
VOL. IV. 31 481
428 SUPREME COUET [Philadelphia,
[Gratz v. Grata.]
The jury having retired, the judge afterwards sent for them
into court, and on their appearing, said,
" I want to say something by way of explanation as to the
plaintiff's points. On examination of them I have found this
proposition which I wish to explain.
"The award of the seventeenth of February, 1830, vests no