Imatges de pàgina
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For by mutual agreement they may waive such right of primer election, and arrange the property of the shares when divided, among themselves. (g)

The part which the eldest takes by virtue of her seniority is called enitia pars, or the part of the eldest; and is a privilege merely personal: for if the eldest sister be dead, her issue shall not choose first, but the next sister; nor shall an assignee have the benefit of it. So that it differs from a privilege, which the law gives to the eldest, without her own act or agreement. It is in fact only an honorary respect paid to age, among those who are in other respects equal. (h)

The third is, where it is agreed that the eldest sister shall make partition, in which case she shall choose last, according to the well known rule of law, established for the prevention of partiality, cujus est divisio alterius est electio. (i)

Fourthly, partition by lots, the proceedings in

(g) Lit. s. 244.

(h) See Co. Litt. 166. b. 186. b. 2 Mel. 365. 2 Roll. Abr. 346. Cro. Eliz. 18. Kelw. 1. a. 49. a. 2. And. 21. 1 Ves. 340., where the reader may, if he pleases, trace the difference between a privilege arising on the act of the parties, and one given by act of law, independently of their own.-A difference, which, as he will find, does not in every respect seem to be clearly established by the authorities.

(i) Litt. s. 244.

which, according to Littleton, are as follows:after partition, each separate part of the land is written on a little scroll, and that is covered with wax in form of a ball, so that the scroll cannot be seen; and then all the balls are put into a hat, to be kept in the hands of an indifferent person; after which the eldest daughter draws first, and the rest according to their seniority; and this is a binding partition, (k)

The division by lot seems very ancient, and is clearly mentioned in the Old Testament. (1)

Ir may be here observed, that there may be a partial partition. For instance, when there are three parceners, and the youngest is desirous of having partition, but the other two refuse. If a proper part be allotted to the youngest sister in severalty, such partition will be good; and the other two will hold the residue in coparcenary, and may divide when they please. But this is not allowed in the compulsory partition by writ. (m)

(k) Litt. s. 246. There are some precedents in Bridgman, Wood, &c. expressly referring to this mode.

(1) Numb. xxvi. 54, 55. xxxiii. v. 54.

(m) Litt. s. 276.

SECT. II.

Of Agreements for a Partition.

WHERE estates are held in joint-tenancy it is obvious that, the jus accrescendi, and the consequent uncertainty how soon by the death of one of the parties the entirety may be vested in the survivor, render it highly important, either that the joint-tenancy should be severed, or that a partition should be effected, during their lives. Where by any means a delay may arise in the making of a legal partition,* an agreement for that purpose should be entered into, which in equity will, it seems, secure the enjoyment of the lands in severalty, as agreed upon, free from the right of survivorship. (a) And therefore, although, after the agreement, and before actual partition, either of the parties should die, yet the survivor would be considered as trustee for the heir as far as respects the lands agreed to be allotted to the deceased joint-tenant. There is a passage indeed in Blackstone's Commentaries, (b) which at first sight is calculated to mislead on this subject. It is there stated, without any qualification, that if joint-tenants agree to part their lands, and hold them in severalty, they

*This subject will be fully considered in a future Chapter. (a) Vide Brown v. Raindle, 3 Ves. jun. 256.

(b) Vol. II. p. 185.

are no longer joint-tenants, and the right of survivorship is destroyed. But this is merely a general hasty expression, and the learned commentator is to be understood as referring to an actual partition between joint-tenants; otherwise the passage would be totally inconsistent with that in page 323 of the same book, which I shall have occasion to consider in the chapter on the conveyances or assurances necessary for perfecting a partition.

It may be here observed, that an agreement for partition must be fair and reasonable, in reference to the respective interests of the parties, and the sums to be given for equality; for, if grossly unjust, it will be set aside in equity. (c)

IF joint-tenants or tenants in common submit the partition to the award of an arbitrator, then, though the land itself, of course, cannot pass by the mere operation of such award, so as to vest it in severalty in the parties; yet the arbitrator may order them to perfect the partition by mutual conveyances.

It has, indeed, been said, that partition cannot be made by award, (d) since a freehold cannot pass without livery: but this position must be

(c) See Tristem v. Melhuish, 2 Eq. Cas. Abr. 56. pl. 4. (d) Rol. Arbit. A. 3.

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understood as referring to the actual operation of the award itself. In a subsequent case, where the parties to the submission were joint-tenants, (e) they were ordered to make partition by mutual conveyances, and no objection was taken that the arbitrator had, in making such order, exceeded his authority.

Indeed, there is a case where several tenants in common covenanted by deed to submit to the award of certain arbitrators, concerning the partition of the land in question. The award was made, allotting the premises in severalty among the owners. But there was no direction that any mutual conveyances should be made. The award was objected to, on this ground, as defective; to which it was answered, that it was in itself a complete partition, and that it sufficiently vested the estates and interests in the respective parties, without any farther conveyance. But it was held, that the award was incomplete, and not good, on the ground that a conveyance is necessary among tenants in common. (f)

This decision is perfectly consonant with the principles and authorities hereafter noticed, in the chapter above referred to, and is not unimportant, as bearing on practice. I have reason to know, that

(e) Knight v. Burton, 6 Mod. 231. (f) Johnson v. Wilson, Willes 248.

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