with reference to partition, in the same predicament as other infants, considered as grantors. (q)

If tenants in common make partition by parol and one is an infant, but after attaining twentyone grants leases of the entirety of his allotment, and acquiesces for several years, and the tenants of the other allotment make great improvements on the faith of their title being in severalty, the partition will not be disturbed by a court of equity. (r)

A prochein ami may make partition, on behalf of an infant parcener; and it will bind the infant, if equal; for the prochein ami is appointed by law to take care of the inheritance of the infant; and this separation and division of his part from what belongs to another is so far from being a prejudice to the infant, that it is really for his benefit and advantage. (s)

IF parceners of non-sane memory make partition, unless it be equal, it shall only bind the parties themselves, not their issue. (t)

And the reason that it binds the parties them

(9) See infra, Chap. V.

(r) Whaley v. Dawson, 2 Sch. and Lefr. 367. supra, Chap. II. (s) 2 Roll. Abr. 256.

(t) 2 Roll. Abr. 256.

selves, it is presumed, is the same that all other contracts are said to bind them, it being stated that their conveyances, &c. are only voidable, and not actually void. (u) However, perhaps the more reasonable opinion is that such acts are absolutely void. (x)

2.-In Respect of Estate.

IF coparceners, joint-tenants, or tenants in common, seised in fee simple, make partition, it is good for ever, though the value of the different shares taken in severalty be unequal. (y)

And this is consonant with reason, and the principles of law; for as the parties may alien the lands, either for a more or less valuable consideration, at their own discretion, so nothing more is done on the partition.

Some observations, that would naturally arise in this place, will be given in the chapter which treats on the conveyances and assurances necessary for perfecting a partition; and to that chapter I beg to refer the reader.(*)

(u) See 2 Bl. Com. 291.

(x) See Thompson v. Leach, 3 Mod. 296. 2 Vent. 198. 1 Fonb. Eq. 45, &c. (4th ed.)

(y) Co. Litt. 166. a. 170. a. Litt. s. 290. 318. F. N. B. 62. E.

(z) Infra, Chap. V.

Littleton mentions, as a rule respecting partition, that where lands had been given to one of several parceners by the ancestor in frankmarriage, she was not allowed to have a share of fee simple lands descending, of greater value, unless the lands given in frankmarriage were brought into hotchpot. (a)

This mode of division has been imitated in the statutes for the distribution of personal estates; but as the discussion of that subject does not fall within my plan, and as gifts in frankmarriage have long fallen into disuse, I shall content myself with having made a reference to the book where the learning on this subject may be found.

PARTITION between parceners in tail, if it be fair and equal at the time, shall bind the issue in tail for ever, although the one alien her part. (b)

But if the partition be unequal; then, although it shall conclude the tenants in tail themselves during their lives, yet the issue of the parcener who has the lesser part in value allotted to her, may avoid it after her death. (c)

If a man dies seised of land in tail, and also of

(a) Litt. s. 266, &c.

173. b. See 2 Vern. 233.

(b) Co. Litt. 166. a.

(c) Co. Litt. 170. a.

Dye. 98. b.

as much land in fee simple, leaving issue two daughters, A. and B., and they make partition, allotting the land in fee simple to B. and the lands in tail to A., this partition is prima facie good; and herein it differs from an exchange, in which the estates must be equal. (d)

But this partition may become voidable by matter subsequent. For instance, if after partition B. aliens her fee simple land to another in fee, and dies, her issue may avoid the partition, as to the lands in tail; for the issue can have no remedy for the land sold by B., because the land was limited to her in fee simple; and inasmuch as the issue is one of the heirs in tail, and has no recompence in respect of the lands in tail allotted to A. it is reasonable that he should have his portion of the lands intailed, such partition not making any discontinuance; (e) for the land passes not by livery of seisin, but the partition is less than a grant, for it makes no degree, but each coparcener is in by descent. (ƒ)

In the above case, A. has barred herself of her right in the fee simple lands, and shall not enter upon the alienee, into a moiety of them, for by the alienation the privity of estate is destroyed.

(d) Co. Litt. 172. b. F. N. B. 62. M.

(e) Litt. s. 260.

(f) Co. Litt. 173. a. Infra, Chap. V.

So if B. had made a gift in tail, the like effect would be produced; for the reversion expectant on an estate tail is of no value in consideration of law, as it may be barred by the recovery of the tenant in tail. It is otherwise of a reversion expectant on an estate for life or years. If in this case, B. alien part of the land in fee simple, and a full recompence for the land entailed descends not to her issue, the latter may waive the taking of any profits thereof, and enter into the land entailed, for the issue in tail shall never be barred without a full recompence, though there be a warranty in deed, or in law, descended. If, on the other hand, A. alien the land entailed and die, her issue shall have a formedon alone, for the whole land entailed; for, so long as the partition remains in force, such issue only is inheritable to the whole land entailed (g).

Another of the principles on which the above. doctrine is founded, is, that it must be accounted the folly of A. that she would agree to such a parti tion, when she might, if she pleased, have for her part a divided moiety of the land in fee simple, and a divided moiety of the lands entailed, and so be secure from loss (h). And though, in point of fact, the eldest parcener knows not of the estates tail, on account of its antiquity, or for want of

(g) Co. Litt. 172. b. (h) Litt. s. 261.

D