usually the case) the deeds must of course remain in the hands of some one person, who may be one of the parties, or an indifferent person, and who must enter into a covenant with each of the parties for the production of the deeds. The course is for each party to take a full abstract of the title; and it has been recommended, and is frequently practised, that at the foot of it there should be an attestation by the professional gentlemen employed, that they had compared the abstract with the title deeds.

It need hardly be mentioned, that all outstanding terms, which it would be material to assign in case of a simple conveyance, should also be assigned on a partition. There may be a separate assignment as applicable to each distinct allotment; or if the title to the term be prolix, or expence is in any respect an object, there may be one assignment in trust for the several parties, as to the lands allotted to them respectively, and to attend the inheritance, according to the uses limited by the deed of partition. And in this case the assignment may be enrolled.

The favour and encouragement which the law holds out to partition by parceners, extended to allow the validity of a parol partition between them, though they were seised in tail, if the lands were equally divided. And since the Statute of Frauds, a writing will be sufficient for this pur

pose, and will be binding on the issue. But if partition by tenants in common and joint-tenants in tail be made by mere conveyance, or (as to joint-tenants) by release, without any act to bar the intail subsisting in the undivided shares, such partition, however it might bind the parties themselves during their lives, would be voidable by the issue. Some act, therefore, proper for barring the intail, should be done. And in the case of parceners in tail, as it generally happens that they wish to gain the fee simple of the allotments to be taken, and moreover as it is desirable, at all events, to prevent future questions, by the issue, as to the equality of the division;-the partition should be perfected by a recovery, or at least by a fine, supposing them to have the reversion in fee. (x)

Of course where any of the parties have a mere power to make partition (y) it must be exercised by a proper appointment.

And if the lands are of copyhold tenure, and the lord has given his licence to the parties to make partition, (3) or partition has been decreed in

(x) Vide supra, p. 30 et sequ. (4) Supra, p. 38.

(z) Supra, p. 37.

equity, (a) then, as a surrender is the proper mode of assurance to be used by a copyholder, it must be adopted in all cases, where if the lands had been of freehold tenure, a conveyance would have been necessary.

(a) Supra, p. 94.

137

CHAPTER VI.

OF THE EFFECT OF PARTITION, AND THE INCIDENTS THERETO.

SECT. I.

As to the Subject Matter of Partition.

IF there are several coparceners of a manor, who make partition, and part of the demesnes and services are allotted to each, it has been said that each shall have a manor and court baron within her purparty, because each is in by act of law. And this subsequent to and notwithstanding the statute 18 Edw. I. Westm. III., called the statute of Quia Emptores. (a) But though the manor might have been divided, the tenancy could not have been so. As if a tenant held by rent and certain other services, and the coparceners on partition apportioned the rent and services, neither could have avowed without the other. (b)

(a) Davis 61. 2 Rol. 122. I. 15. 6 Rep. 64. Morris v. Smith, Cro. Eliz. 39.

(b) Mich. 17 Ed. 3. pl. 102. f. 72. b. Copyholds 17.

See 1 Watk. on

on

With respect to joint-tenants, it is said, that if, partition between them, part of the demesnes and services is allotted to each, yet each shall not have a manor and keep several courts, as in the case of parceners, but must together keep one court; for joint-tenants came in by purchase, and by their own act; though it is to be observed that Anderson thought there was no difference between the cases. (c)

Whether a manor can be divided by the act of the party, appears by no means clearly settled, though the question seems material in reference to partition by joint-tenants or tenants in common. There certainly has been a considerable contrariety of opinion, on the point; as may be seen by the books cited below. (d) However, a distinction has been clearly made between acts of law and those of the party. (e) And Sir E. Coke affirms, in a note to Melwich's case, (f) that a lord cannot by his own act make of one and the same

(c) Morris v. Smith and another, Cro. Eliz. 39. 1 Leon. 27. S. C. Lord Coke mentions partition of a manor by joint-tenants. Co. Litt. 165. b. (case respecting the office of woodward, &c. cited fully, in this Sectlon, infra,) but of course, no◄ thing is said as to the effect of the partition on the manor.

(d) Gilb. Ten. 210. Harris and another v. Nicholls, Cro. Eliz. 19. Morris v,Smith and another, ib. 38. Marsh and Smith, 1 Leon. 36. Cro. Eliz. 300. Neale v. Jackson, 4 Co. 26. 6 Co. 63. Vin. Abr. Manor. (G)

(e) Finche's case, 6 Co. 63..

(/) 4 Co. 26.