Opinion by Me.

This is an important ease, whether regard be had to the value of the property' in controversy, or to the questions involved. The assignments of error are thirty-six in number and cover thirty-five pages of the appellants’ paperTbook. The printed briefs aggregate about two hundred pages more. It is by no means easy to arrange and condense the facts and the questions presented by them so as to bring a discussion of them within reasonable limits. Nearly seventy years before this suit was brought Llewellyn Howell, Sr., who owned the farm of which the land in controversy was part, died testate. He left a widow and nine children to survive him. He gave the use of his farm to his widow until the youngest child should come of age, and directed that it should then be sold. One third of the purchase money was to be invested for the use of the widow during life and the other two thirds to be divided among the children. He gave to his widow, however, the right to elect whether the sale should take place at the time designated by him, or not until her own death. She elected that it should remain unsold. She survived her husband about thirty years, dying in February, 1853. The plaintiffs are the children of John Howell, one oE the sons of Llewellyn Howell, Sr., but they claim title as the devisees of Llewellyn Howell, Jr., who was another of the sons of Llewellyn Howell, Sr. To support their title they rely upon parol sales alleged to have been made in 1836 and 1837 by the children of the elder Howell to their three brothers, John, Llewellyn, Jr., and Philip; and a subsequent parol partition between the purchasers by which the land now in controversy became the property of Llewellyn, Jr.

The defendants claim under John Howell, the father of the plaintiffs who claimed to be the owner of seven eighths of the land as heir at law and as the vendee of six other heirs at law of his father from whom he held conveyances of their title. It is conceded on all sides that the will of Llewellyn Howell, Sr., converted his farm into personalty ; and that the share of each *162of his children was not land, but a sum of money out of the proceeds of the sale which his executors were directed to make. But it was competent for the devisees to relieve against this conversion by agreement, and restore the property to its original character as real estate. The plaintiffs allege that this was done at the time the parol sales under which they claim were effected, and the parol partition made between the purchasers. The defendants insist that no parol sales were in fact consummated, and allege that the re-conversion took place when the several heirs at law conveyed to John Howell, their grantor. There is therefore no allegation that the interest or title of either party is now personal, and no denial that for at least thirty years it has been restored to its original character as land.

This is an equitable ejectment. The plaintiffs are asserting a title that rests on the alleged parol contracts of sale and the alleged subsequent parol contract for partition. They are out of possession, and for about forty years the defendants have been in possession claiming title. The plaintiffs must recover, if they recover at all, upon the strength of their own title, for the defendants may stand upon their possession until a valid title is established in the plaintiff. Potior est conditio defendentis is a maxim of equity as well as of law, and the defendants are not called,,upon to defend their possession until the plaintiffs establish a title that is good, prima facie, to the land in controversy. Was such a title shown, or was the evidence in support of it submitted to the jury under suitable instructions ? The title set up was as to one share, or an equal undivided eighth part, the title of Llewellyn Howell, Jr., under his father’s will; and as to the other seven eighths it was the title of his brothers and sisters under the same will which it was alleged he held. The title of two of his sisters appears to have been conveyed by deed to him and his brothers Philip and John as tenants in common. These deeds were found in the possession of John and no reason for disregarding them has been shown. So far as the evidence indicates they were valid conveyances, and they left nothing in the respective grantors to pass by their subsequent deeds to John. Llewellyn, Jr., appears therefore to have held at least his own share and an undivided one third of the two shares of his sisters Sarah and Martha. The shares *163of James and Andrew and of Esther and Mary it is alleged •were bought by the three brothers John, Llewellyn, Jr., and Philip as tenants in common; and the interest of John and Philip in the land in controversy, it is claimed, passed to Llewellyn, Jr., by a parol contract for partition which was executed by the running and marking of a division line on the ground, and by a continued use or possession in accordance therewith extending up to the death of Llewellyn, Jr., in 1851. It will thus be seen that as to four shares the title of Llewellyn, Jr., rested on separate parol sales; and as to the shares of John and Philip, as devisees, and as tenants in common of the shares acquired by purchase, it rested on a parol partition.

I am unable to discover the proof of a parol contract made between the three brothers and either of the other heirs for the purchase of his or her share at an agreed price. The existence of such contracts must be gathered, so far as the proofs before us show, from the declarations of the parties made to strangers in the course of conversations of which we have but a fragment before us. These declarations are general and indefinite in their character and do not show any of the terms of either of the alleged contracts. Thus one witness says he heard John and Llewellyn, Jr., say they had bought out their brothers and sisters. The same witness says that as late as 1848, some ten years after the alleged partition was had, he heard Llewellyn, Jr., say that he would be able to pay off the heirs out of the proceeds of the timber on'the land. Another witness says that in 1840 Lewellyn told him they had bought out the other heirs, had paid part of the purchase money and were going to pay the balance. Still another says that John and Llewellyn told him they had bought out all of the heirs. The proofs of the parol partition are equally wanting in definiteness and certainty. There is no proof of an agreement to divide what they had before held in common. There is no proof of the actual running of a partition line on the ground by the parties. The existence of the line and its purpose must be gathered from the declarations of the parties to persons in their employ and to their neighbors. Thus Mr. Ball testifies that John and Llewellyn showed him a fence and told him it was the dividing line. McFadden says there was no fence right on the line but within “ maybe ten rods and some places not so far. It run down to *164what was called the Murphy line. It didn’t follow the line right through.” Dougherty says he worked up to a fence they called the division line, and that he understood Llewellyn had the north side of it and John the south side. In answer to this question, “ Did they state to you when or how they divided it? ” (the farm,) he said “not to my recollection.”

The fact that two brick houses were built upon the land was greatly relied on as showing that a partition had been made ; but these houses were built of brick made by John and Llewellyn in common, and during the lifetime of the mother. Llewellyn and his mother lived in one. John and his family lived in the other.

Under what arrangement with their mother the life tenant, or with each other, the occupancy of the farm was divided or the houses built the evidence is silent. This was the ease of the plaintiffs. We do not say it should not have gone to the jury, but we do say that if submitted to the jury it should have been done with care and with very definite instructions as to what it was necessary the jury should find in order to sustain the plaintiffs’ title.

But there was pertinent and important evidence on the part of the defendants that was entitled to the like careful treatment. As to the parol sales it is clear that each of the alleged vendors took a different view of the effect of the negotiations between themselves and Llewellyn from that which he entertained. They have, each of them, made a sale to John since Llewellyn’s death and executed a deed to him for the respective shares held by them. They disavow and repudiate the sale alleged to have been made by them by parol, and assert their ownership after Llewellyn’s death and the probate of his will. His two alleged cotenants repudiate the purchases in common and the subsequent parol parfcitiofi set up by the plaintiffs. Llewellyn died in Januaiy, 1851. The sale by John to Mellon did not take place until Aug. 25, 1863.

The third action of ejectment brought by James and Andrew against John terminated in a verdict in favor of James for fifty acres in the extreme north end of the original farm in 1857. Since that time at least John has been in the undisputed occupancy of all the rest of the land occupied by Llewellyn and his mother, including the land now in controversy. That he *165had been in the exclusive occupancy from the time of Llewellyn’s death, subject only to the life estate of his mother is fairly infer-able from the fact that the first action of ejectment brought by James and Andrew was begun in June, 1852. The mother was still living in the house which Llewellyn had occupied with her from the time of its erection and was made a codefendant with John and Philip in the action. These significant circumstances should have been set over against the indefinite declarations relied on by the plaintiffs to prove the several parol sales, and the parol partition on which their title to most of the land claimed depended. The attention of the jury, having been drawn by the learned judge to the proofs on the part of the plaintiffs, should have been drawn to the evidence in reply thereto by the defendants, and they should have been directed to consider it in determining the weight to be given to the testimony of the aged witnesses who undertook to give declarations made in their hearing a half century before they were called to testify to them. The important questions for the jury were, first, does the evidence fairly show the actual making of the parol sales under which the three brothers acquired the title of their brothers and sisters in the farm ? If not then the plaintiffs can only recover the undivided share which Llewellyn holds as heir at law of his father and one third of the shares of his sisters Sarah and Esther.

If the jury should reach the other conclusion, that the parol sales are satisfactorily proved, then the second question relates to the parol partition. If this is not established the plaintiffs cannot recover though the jury should find for them upon the first question. But if both questions be found for the plaintiffs then they should recover in this action the land they claim. In considering the second question the erection of the two houses does not seem to us to play any important part. One of them was built about 1837 and the other about 1839. The brick for both were prepared and burned by the family, or such of them as then lived at home with the mother, and the work upon them was done in the same manner. The houses were apparently built by a common effort and for the common benefit.

The marriage of John did not occur till three or four years later, and he continued to live with his mother till his marriage *166took place. He then moved into the house on the southern part of the farm which had not previously been occupied. There is nothing in all this that bears with any directness on the making of a contract or partition between John, Llewellyn and Philip as owners in common. The proof offered to show the making of a division line separating the farm into two purparts by way of amicable partition between the three brothers is, to say the least, vague and uncertain. When the line was settled upon, for what purpose it was intended, and just where it ran it would be difficult to determine from the evidence. The jury should have been told what facts it was necessary for them to find in order to justify them in sustaining the alleged parol partition, and their attention should have been drawn to the evidence from which these facts must be found if found at all.

The trouble with the charge is in its manner and general effect. The learned judge seems to have been satisfied by the evidence that the parol sales were established and the partition and the boundary line made as alleged by the plaintiffs. He instructed the jury in answer to the defendants’ third point, “ If the evidence of the plaintiff is believed it is sufficient to establish a purchase by Llewellyn, John and Philip of the interests of their other brothers and sisters in the .whole farm and its proceeds, and that they being owners thereof with consent and agreement of the mother made a parol partition of the land among themselves by which the share of Llewellyn Howell, Jr., was set apart by definite metes and bounds and occupied by him as such to the time of his death. It is a fact for the jury.” But this left to the jury little but the question of credibility. They were told that the evidence was sufficient to establish the title of the plaintiff “if it is believed.” It was the credibility of the plaintiffs’ witnesses, and not the vague and uncertain character of their testimony, to which the attention of the juiy was directed. Their testimony might all be true and yet the jurj;- might not have been able to find from it the several parol contracts of sale, or that if made in terms they were ever actually carried into effect. The subsequent conduct of all the parties was inconsistent with the sales alleged, and the duty of the jury was to determine nota question of credibility merely, but a question of the weight of the evidence taken as a whole. *167Did it sliow in a satisfactory manner tbe making of the various parol agreements alleged, or were the declarations proved by the witnesses consistent with the existence of negotiations that did not, except in the cases of Martha and Esther, ripen into valid agreements of sale ? The assignments of error numbered with Roman numerals 24, 27, 28 and 84 present instructions that are objectionable as presenting in too strong a light the facts relied on by the plaintiffs, without any allusion to the circumstances presented by the defendants as an answer to them. These circumstances were entitled to a careful consideration, and while remaining uucontroverted and unexplained were inconsistent with the theory of the plaintiffs, and a forcible reply to it.

In all- other respects this ease was tried with ability and with great clearness by the learned judge, but the conclusion is not easily to be avoided that the charge as a whole was calculated to lead the jury to a verdict in favor of the plaintiffs by the prominence it gave to the plaintiffs’ case, and by its failure to present the circumstances relied on by the defendants as an answer thereto.

The judgment is reversed and a venire facias de novo is awarded.