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in many instances, where several persons have been entitled to lands, as tenants in common, in fee, or have been proprietors of waste grounds, in respect of different farms, &c. of which they were seised in fee; the only steps taken, for the purpose of effecting a partition, have been, to enter into a deed of covenant, to refer the partition and allotment to the arbitration of some indifferent person: and then it was taken for granted, that his award completed the title of each individual to his purparty.

However, it is clear that at law the parties are still seised as tenants in common; and where a title so circumstanced comes before the practitioner's notice, and a conveyance from the former co-tenants cannot be procured, without great difficulty; perhaps the best plan to be recommended is, that a feoffment should be made by the proprietor, and a fine levied, for the purpose of gaining a tortious freehold, and perfecting the title by nonclaim.

BEFORE I conclude this chapter, it may not be irrelevant to observe, that equity has sometimes decreed that a partition by parol, even by tenants in tail, shall bind the issue, on the ground of their being in possession of the lands which came in recompence. (g)

(g) See 2 Vern. 233,

It seems also, that a parol agreement for partition by joint-tenants in fee, if in part executed, and long acquiesced in, will be enforced in equity. (h)

So also, where there were two tenants in common, and one was an infant, and his guardian joined with the other tenants in common, in making partition by parol; and the infant, after attaining the age of twenty-one, granted leases of the entirety of his allotment, and acquiesced for seventeen years, and afterwards filed a bill for partition: Lord Manners refused to decree one, on the ground that the plaintiff by his own acts had ratified the partition already made; and that the acquiescence, as well as certain improvements made by the lessees of the other tenant in common, on the faith of their title being in severalty, raised an equity, which would stop the court from interposing to disturb what had been done. And that the plaintiff, therefore, had no right to more than a conveyance, in pursuance of the partition already made. (i)

(h) Ireland v. Rittle, 1 Atk. 541. And see 1 Vern, 472. (i) Whaley v. Dawson, 2 Sch, and Lefr. 367.

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SECT. III.

OF THE PARTIES TO A PARTITION.

1. In respect of Personal Qualification.

IF parceners, seised in fee-simple, marry, and they and their husbands make an equal and fair partition in value, it will be binding on the wives and their heirs; and the reason of this is, because the husbands and wives are compellable at common law to make partition; and that which they are compellable to do in this case by law, they may do by agreement, without process of law. (a) But it is expressly stated, that the wife must be a party to the partition. (b)

So a coparcener and her husband may grant a rent for equality of partition out of her part; and the partition being equal, it shall charge such part for ever. (c)

But if the partition be unequal, though it shall

(a) Litt. s. 257. Co. Litt. 171. a.

(b) Co. Litt. 170. b. 171. a.

(c) Co. Litt. 169. b.

be good during the lives of the husbands, yet the woman who has the lesser part may defeat the partition, by entry, after her husband's death. In this case, the partition is not actually void, but voidable; for if, after the husband's decease, the wife enters into the unequal part, and agrees to it, this shall bind her. (d) And it may be observed, that when a partition is defeated for inequality, it shall not be defeated for the surplusage only, but in toto. (e) And with respect to the necessity of equality of division, the partition by agreement differs from that by writ. (ƒ)

If the annual value of the purparties is equal at the time of the partition, and afterwards becomes unequal by any matter subsequent, as by surrounding, ill husbandry, &c. yet the partition remains good. (g)

A decision was made by Lord Hardwicke, which has been generally supposed to militate against the above doctrine, as to the validity of a partition made by husbands and wives. The case was as follows:

Mary Jackson and Susan Jackson, two co-heirs

(d) Litt. s. 256. Co. Litt. 166. a. 170. b. See F. N. B. 62. F.

(e) Co. Litt. 170. b.

(f) Co. Litt. 171. a. Infra, Chap. III.

(g) Co. Litt. 171. a.

of copyhold premises, who had been admitted accordingly, took a conveyance, by way of feoffment, of the freehold, from .the lord of the manor, to them, their heirs, and assigns for ever. Mary intermarried with Thomas Ingram, and Susan with William Rittle; and, having made no partition before marriage, the husbands, by mutual agreement, made partition between themselves and the heirs of Mary and Susan. They each entered into possession; and Susan, at the time the bill was filed, held a share of the premises divided by virtue of such partition. Mary enjoyed her part until her death; and her share being, at the time of partition, somewhat larger than Susan's, in consideration thereof Mary paid the taxes and levies charged on both.

The husbands being both dead, the bill was brought against Susan Rittle, to confirm the division of the estate, and that she might be restrained from proceeding at law to compel a new partition.

Lord Hardwicke said, where there had been long a possession under an agreement for owelty of partition, the court was strongly inclined to quiet the enjoyment of such estates; and he was at first of opinion to establish that agreement: but it appeared then, that it was only an agreement between the two husbands, which could not bind the inheritance of the wives; for the argument of long enjoyment was of no force there, unless it had been

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