Page:Federal Reporter, 1st Series, Volume 2.djvu/80

 IS RE NULL. 73 �the partition agreement of September 11, 1849, does espressly charge the purpart taken by H. H. Null with one-third ôi the agreed valuation, "This one-third rcmains in the land," is the language of the agreement. Surely these are apt words to create a charge or lien upon the land. The agreement waa recorded long prier to the entry of the judgment of Jesse Fries. He had, therefore, constructive, if not actual, notice of the prior encumbrance. �Was the lien intended to be created by the partition agree- ment defeated by the deed from the other heirs of Henry Null, deceased, to H. H. Null ? Certainly not ; for the agree- ment itself contemplated and provided for that deed. The deed bears even date with the agreement, and recites the par- tition. It is part and parcel of the partition, and cannot be used to defeat the manifest and expressed intention of the parties. This amicable partition is declared in the agreement to be made "for the purpose of avoiding difficulties and costs in selling said estate." It was in lieu of proceedings in par- tition in the orphan's court, which any of the parties might have instituted; and in respect to the one-third of the valua- tion money the parties merely adopted the provisions of sec- tion 41 of the act of March 20, 1832, (Purdon, 437, pi. 158,) which charges upon the premises the principal of the widow's dower, and directs that the interest be paid her annually, and the principal at her death to the parties thereunto legally en- titled. Say the court, in Long v. Long, 1 Watts, 268 : "Wher- ever parties, then, have done amicably what the law would have compelled, it will, if possible, be doubly binding upon them." �A deed is not always a merger of prior articles of agreement In many cases it is to be considered a part performance only Selden v. Williams, 9 Watts, 9. If the articles contain a pro- vision for something more than the execution of a deed, it may remain in fuU force after a conveyance has been executed and accepted. Barnitz v. Smith, 1 Watts &, Serg. 145. �It is, however, contended that the partition agreement pro- vides how the one-third of the valuation, money was to be secured, viz. : by mortgage; and that, as the deed was deliv- ����