having the evidence, &c. yet the law presumes her to be conusant of her right and title. (i)

But the law does not so far favour a partition by tenants in common, or joint-tenants, in tail, as to allow of its being effected by mere agreement, without some act being done to bind the issue. (k)

For though joint-tenants, and tenants in common, in tail, as well as in fee, are as we shall see, compellable by statute to make partition; yet Lord Coke says they must pursue that statute by writ, and all other partitions remain as they were before. The case of Oakley v. Smith, above referred to, was decided by Lord Keeper Henley, on the ground of the lands being of copyhold tenure; and it was argued that, had the property been freehold, the agreement for a partition would have been good. It could not, however, have been good, so as to effectuate an actual partition at law, because the parties were tenants in common. (1).

In cases of partition by tenants in tail, where assurances for barring the entail are used, care should be taken as to the mode in which they are framed. For instance, suppose there are two tenants in common in tail, and they suffer a re

(i) Co. Litt. 173. b.

(k) See Oakley v. Smith, Ambl. 368. Infra, Chap. V. (1) Infra, Chap. V.

covery, and only one of them comes in as vouchee, with respect to each allotment of parcels; the entail in the whole of that allotment will not be barred. So if each of them conveys only the parcels allotted to the other, by a separate deed, it will not be good to make a tenant to the precipe for the whole. The reason of this is, each is tenant in tail of an undivided share of all the lands; consequently, a conveyance of any specific part of the lands can only pass the undivided share of the grantor, in such part, and the estate tail of the other, in the same part remains undisturbed. The case just referred to, though it arose respecting lands of copyhold tenure, will elucidate this subject. The facts were as follow:-Two copyholders, tenants in common, in tail, entered into an agreement, by deed, to make partition, and afterwards each made a surrender to the other of the parcels which had been allotted to that other respectively.

Lord Keeper Henley decided, that the several daughters only barred a moiety of their respective estate. (m)

By estate must be understood lands allotted; and, indeed, the Lord Keeper's decision, as reported, is rather obscure, on account of the words estate and moiety being used, not as applicable to

(m) Oakley v. Smith, ubi. supra.

the entailed undivided share of each, but to her particular allotment. Reading the decision with this correction, it appears very intelligible. At the time of the surrender, each daughter was seised of an estate tail, in a moiety, as well of her own, as of her sister's allotment. But neither of them did any act to affect her own estate tail in the allotment taken by herself. As to her allotment, indeed, each received a surrender from her sister; but her own estate tail remained unbarred.

Where tenants in tail, therefore, make partition, the mode to be recommended, is, for all to join in the fine or recovery, which should comprise all the parcels; and the uses of the fine or recovery may be severally declared, as to each allotment, in like manner as on the seisin conferred by a simple conveyance of which I shall speak hereafter.

JOINT-TENANTS, and tenants in common, for life, (n) or for years, (o) may make partition, which will be valid during the continuance of their respective estates. But, it is to be observed, that in the case of joint-tenants for life, it is less advantageous to themselves, and more so to the reversioner, to have the joint estate severed by partition. For the consequence of course is, that on

(n) 4 Rep. 72. b. 1 Jones 55. And see Co. Litt. 191. a, (0) Dyer 67. a. 350. b. Cro. Eliz. 95.

the death of either of the tenants, the reversioner shall enter, and not the survivor. (p)

IT is said, at the end of Calthorpe, (q) it was agreed in the Duchy Chamber, that if two jointtenants, copyholders in fee, make partition, it is good, and no forfeiture or alienation. But Mr. Hargrave (r) says, parceners of copyhold cannot make partition without the lord's licence, and refers to P. 41 Eliz. B. R. Fuller and Terry, Hal. MS. The same case is in 1 Roll. Abr. 509. pl. 1, 2. but the points there are different. (s)

IN reference to the quality of the estate of the parties, it may be observed, that a kind of partial partition may be made, in which all the cotenants need not join. Thus, if A. is seised of one moiety, as tenant in common with several persons, who are seised of the other moiety; the latter may make partition, as far as concerns their own shares so that, though an undivided tenancy will still subsist as between A. and the others, yet, as between those others, each will be solely seised of his allotment. (t)

(p) 4 Rep. 72. b. Infra, Chap. VI.

(9) Read 98.

(r) Co. Litt. 59. a. note (1.)

(s) See also Oakley v. Smith, Ambl. 368. supra.

(t) See 1 Brownl. 156. and infra Chap. III. s. 2. See also supra, p. 15.

SECT. IV.

What Powers authorize a Partition.

LORD ROSSLYN in Abel v. Heathcote (a) said, there is no occasion to give the trustees in a settlement a power to make partition; for the estate of a tenant in common cannot be so settled, on the marriage of one, as to prevent the right of the others to make partition.

This is clearly correct. However, where an undivided share is settled to uses in strict settlement, great delays might arise in the making of a final and complete partition. And, therefore, it is convenient to insert a power of partition; and the power should extend to enable the parties to raise gross or annual sums of money, for the purpose of effecting the partition. (b) Such a power is never omitted in a settlement, skilfully penned, of an undivided share.

It has been a matter of great doubt and discussion, whether the usual power to sell and exchange will not authorize a partition. (c) Several

(a) 2 Ves. jun. 98.

(b) See Appendix.

(c) See 2 Cas. and Op. 34.