Opinion by

Both parties to this contention claim under their father, John Hoover, who .died intestate, seised of real estate valued at nearly $12,000, leaving to survive him five children and descendants of three deceased children. In September, 1877, by proceedings in partition, one of the purparts, consisting of the land in. controversy, was adjudged to Elias Hoover, plaintiff below, upon, his giving-recognizance in the usual form, which was done. Being thus invested with the legal title, he was prima facie entitled to the possession; and hence the binding instructions complained; of were rightly given, unless there was evidence proper for the-consideration of the jury tending to prove a valid equitable title and right of possession in defendant below. It is contended that there was such evidence, and that is the only question involved, in the specification of error.

The defense was that, in pursuance of a previous agreement' between the two brothers, Elias appeared in court and took thepurpart in controversy at the valuation of $1,437.05, not in his-own right, but for his brother Thomas; that, as part of the agreement, the latter assigned his interest in their father’s estate,, worth about $1,600, to be used in adjusting the valuation money of the land thus taken for Thomas’s benefit, and the same was-so applied; that immediately after the partition Thomas went into possession of the land, and has continued to hold the sarneever since in his own right.

Without referring in detail to the evidence introduced and relied on by the defendant below, it is sufficient to say that it. tended to prove the allegations of fact upon which he based hisdefeoase. Several of the witnesses testified to repeated declarations of plaintiff below, made at the time the decree in partition. *345was entered, as well as before and afterwards, to the effect that he would take the land in question for Thomas; that he was taking it for him, and again that he had taken it for Thomas. The fact that Thomas’s interest in the estate was assigned to Elias, and used by him in equalizing the shares of the respective distributees was clearly shown. The reason given by the plaintiff below for taking the purpart in his own name for the benefit of his brother Thomas was also referred to by some of the witnesses. Among other things Thomas’s wife testified: “Elias came to our house and coaxed Tom to make the assignment— that he should make it to him or else he would be cheated out of his whole interest — that Tom is such a very dumb man that he can transact no such business, and that he must have a man to take care of him; that everything would go right, if he would make it that way.”

There was some evidence on the other side, tending to show that the assignment of Thomas’s interest in his father’s estate was made for a different purpose; but it was for the jury to say whether the facts alleged by plaintiff in error were true or not.

There was evidence from which the jury might have found that plaintiff below agreed to take and did take the land in question for his brother, paid for the same with his interest in their father’s estate, assigned by him for that purpose, and possession was taken and held in pursuance of that arrangement. We, therefore, think the case should have been submitted to the jury with proper instructions as to what was necessary to justify a verdict in favor of defendant below against the admitted legal title of the plaintiff. The assignment of error is sustained.

Judgment reversed, and a v&nire facias de novo awarded.