of them before partition grants a rent charge out of one of the acres, and afterwards upon partition, the acre charged is allotted to the other sister; she shall hold it discharged; for a parcener before partition, having no separate title to a distinct moiety, (that is, to a specific portion of the lands,) cannot pretend to charge any particular part of the lands, so as to make it subject to that charge in the hands of another, who does not hold under her; therefore, this grant by the sister, who at the time of the grant had only a title to an indistinct and undivided moiety, shall never affect the other parcener, who does not claim under her, and who at the time of the grant had as good a title to that acre out of which the rent was to arise as the grantor had. (r)

PARTITION by decree in equity never affects the interests of third parties. Therefore, rights of common are no objection to the commission, as those rights will not be in the least affected by the partition, which regards only the freehold and inheritance of the soil. It is immaterial whether others have a right over that soil and freehold which they have in common among them. Those rights will equally remain.

(s)

WHERE an undivided share descended on the

(r) Mo. 95.

(3) Agar v. Fairfax, 17 Ves. 554.

wife of a bankrupt who had obtained his certificate, and the plaintiff had purchased the share of the bankrupt and his wife, and a decree was made for a partition; it was ordered that there should be a clause in the conveyance, declaring that the part allotted to the plaintiff should be a security to the defendants (who were entitled to the other shares) against any claims or demands of any of the creditors under the bankruptcy. (t).

IF joint-tenants for life make partition, this dissolves the joint-tenancy, and the right of survivorship incident thereto; and consequently, on the death of either of them the reversioner, and not the survivor, shall enter. The same effect would be produced by partition between them, even if the original lease for life had been made to them, and the survivor of them, because those words in the limitation of a life estate have no further operation than the law would imply without them, and expressio eorum quæ tacitè insunt nihil operatur. So that, in cases of leases for life, it is more beneficial to the lessor to have the joint-tenancy severed by partition; while, for the same reason, it is of course more disadvantageous to the tenants for life to sever it. (u)

(t) Abell v. Heathcote, 4 Bro. Ch. Ca. 280.

(u) 4 Rep. 72. b. Dy. 67. a. 1 Jones 55. Co. Litt.

191. a.

IF there be a lease to two for years, with a proviso that if the lessees die within the term, it shall cease, and they make partition, and one aliens his part and dies; the lessor cannot enter into his part who is dead; but the grantee, or the executors of the lessee (if he do not alien) shall have his part during the life of the survivor. (x)

If there be a lease to two for years, on condition that they do not alien, and they make partition, and one aliens his part, all is forfeited. (y)

WITH regard to the effect of partition on lessees for years, where they are not parties thereto, the following points are to be noticed :

If there be two coparceners of three acres of land, every one of equal value, and the one coparcener lets her part to another for years, and afterwards makes partition by consent, and one acre only is allotted to the lessor, the lessee is not bound thereby; but he may enter and take the profits. of another half acre, for that of right belongs to him. (*)

But if the partition be by writ of partition, brought against the lessor, and too little is allotted

(x) Dy. 67. a.

(y) Dyer 67. a. note.

(*) Co. Lit. 46. a. See Dy. 52. a.

to the lessor, Lord Coke states it to be held by some, that the lessee cannot avoid it, for that it is made by the oath of men; and judgment is thereupon given, that the partition shall remain firm and stable. (a)

If there be parceners of two acres, and one leases one acre, which on writ of partition is allotted to the other, the lease is wholly avoided. (b)

It is enacted by the statute 8 and 9 W. III. c. 31. s. 4. that, "in case partition be made, returned, and filed, he or they that were tenant or tenants of any of the messuages, &c. or any part or purpart thereof, before they were divided, shall be tenant or tenants for such part set out severally to the respective landlords or owners thereof, by and under the same conditions, rents, covenants, and reservations, where they are or shall be divided; and the landlords and owners of the several parts and purparts so divided and allotted as aforesaid shall warrant and make good unto their respective tenants the said several parts severally, after such partition, as they are or were bound to do, by any copy, leases, or grants, of their respective parts, before any partition made; and in case any demandant be tenant in actual possession to the tenant to the action for his part and proportion or

(a) Co. Lit. 46. a. See Dy. 52. a.

(b) Hal. MS. Hargr. Co. Litt. 46. a. note 273.

any part thereof, in the messuages, &c. to be divided, by virtue of a writ of partition as aforesaid, for any term of life, lives, or years, or uncertain interest, the said tenant shall stand and be possessed of the said purparts and proportions, for the like term, and under the same conditions and covenants, when it is set out severally, in pursuance of that or any other act, statute, or law to that purpose."

SECT. II.

As to a Rent granted for Owelty of Partition.

IF a rent be granted for owelty of partition, it may be distrained for of common right, if in arrear, lest the grantee be without remedy, she having given a valuable recompence in land. And this, without any words of distress. And her grantee shall have this privilege also, it not being annexed to her person merely, but to the estate also. (a)

If the rent be granted, generally, for owelty of partition, pro residuo terræ, it shall be intended out of the purparty of her that granted it. (b)

(a) Co. Litt. 169. a.

(b) Ibid.