We shall see hereafter, in the heads which treat of compulsory partition, that a division of any property, capable of division, will be enforced, although it should be attended with the most inconvenient consequences, and although the value of the property so much depends on its entireness, that its division would materially lessen that value. It seems scarcely necessary to observe here, that, of course, the parties may make any arrangement they may agree upon by way of voluntary partition, however inconvenient, and however ill adapted the property may seem to be the subject of division.

But there may be a partition in effect, and so as to give to each parcener a species of enjoyment in severalty, without any division of the land.

For instance, if an agreement be made between coparceners, that the one shall have and occupy the land from Easter until the 1st of August only, in severalty, and that the other shall have and occupy the land from the 1st of August until Easter, yearly, to them and their heirs; this is a good partition. Also, if two coparceners have two manors by descent, and they make partition that the one shall have the one manor for one year or longer, and the other the other manor for a similar period, alternis vicibus, to them and their heirs, this is a good partition. In this case, each coparcener has an estate of inheritance, and not a mere chattel

I

interest, although they have the occupation by turns for a certain term of years. (c)

If there are several coparceners of a manor, who make partition, and part of the demesnes and services are allotted to each, it has been said, that each shall have a manor and Court Baron within her purparty, because each is in by act of law: and this subsequently to and notwithstanding the stat. 18 Edw. 1. Westm. 3. called the stat. of Quia Emptores. (d)

But though the manor might have been divided, the tenancy could not have been so. As if a tenant held by rent and certain other services, and the coparceners, on partition, apportioned the rent and services, neither could have avowed without the other. (e) With respect to joint-tenants, it is said that if, on partition between them, part of the demesnes and services is allotted to each, yet each shall not have a manor and keep several courts, as in the case of parceners, but must together keep one court; for joint-tenants came in by purchase, and by their own act. (f) And, on the whole, it

(c) Co. Litt. 4. a. 167. a. F. N. B. 62. I. Infra, Chapter on Effect, &c. of Partition.

(d) Davis 61. 2 Roll. 122. l. 15. 6 Rep. 64. Cro. Eliz. 39. Morris v. Smith.

(e) Mich. 17 Edw. 3. pl. 102. f. 72. b. See 1 Watk. on Copyholds, 15.

(f) Morris v. Smith and another, Cro. Eliz. 39. per Periam, J. 1 Leon. 27. S. C.

should seem that, by the act of the party, a nanor can neither be divided, so as to make several manors, nor can the courts of the same manor be divided by granting the freehold and inheritance of all the copyholds to a stranger in fee. However, these points are by no means clearly settled by the authorities. (g)

On a partition between two coparceners of a manor, the services may be allotted to one, and the demesnes to the other: but the manor is thereby suspended, and the demesnes are severed from it. (h)

In general, actual partition cannot, of course, be made of things which are in their nature entire; yet it may be made in effect. For where the thing and the profits are the same, a partition of the profits is a partition of the thing. For instance, though an advowson is in itself entire, and a partition could not make two advowsons out of one, yet it may be divided so that the parceners, &c. may pre

(g) Gilb. Ten. 210. Harris and another v. Nicholl, Cro. Eliz. 19. Morris v. Smith and another, ib. 38. Marsh and Smith, 1 Leon. 36. Cro. Eliz. 300. Neale v. Jackson, 4 Co. 26. 6 Co. 63. Vin. Abr. Manor (G), Finch's case, 6 Co. 63. Cro. Eliz. 252. See Cro. Eliz.

Murrel and Smith, 4 Co. 24.

102. 443. 1 Watk. Cop. 17.

And see more fully on this sub

ject infra, Chapter on the Effect, &c. of Partition.

(h) Sav. 113. 6 Co. 24. 2 Roll. Abr. 122. Manor (F.) pl. 3. and (H.)

sent by turns. (i) However, such a partition by coparceners was held to be only a partition of the presentation; for the advowson continued in coparcenary, and they must all have joined after such partition in a writ of right of advowson. (k) But since the stat. of 7 Ann. c. 18. their joining does not seem necessary, because by that statute where partion is made to present by turns, each shall be seised of a separate estate. (1)

A rent charge is entire and against common right, yet it may be divided between coparceners; and by act in law the tenant of the land is subject to several distresses, and partition may be made before seisin of the rent. (m)

A reversion may be divided; so that one shall have the reversion of so many acres, and the other the reversion of other acres. (n)

A corrody certain may also be divided between parceners. (0)

But reasonable estovers appendant to a free

(i) Co. Litt. 164. b. 1 Rep. 87.

Bishop of Salisbury v.

Phillips, 1 Salk. 43. Carth. 505. 1 Lord Raym. 535.

(k) 2 Roll. Abr. 255. 1 Co. 87. α.

(1) Cited infra, Chapter on Effect of Partition.

(m) Co. Litt. 164. b.

(n) F. N. B. 62. D.

(0) Co. Litt. 164. b.

hold, as housebote, haybote, &c. are so entire, that they shall not be divided between coparceners. So if a corrody uncertain be granted to a man and his heirs, and he has issue several daughters, the corrody shall not be divided between them. (p)

Homage and fealty cannot be divided between coparceners; (q) nor can a piscary uncertain, or a common sans nombre, for that would be a charge to the tenant of the soil; and a partition would multiply the interest originally granted, and be a hardship on the grantor, never contemplated by him. (r)

Lord Mountjoy, seised of the manor of C. in fee, did by deed indented and inrolled bargain and sell the same to Browne in fee, in which indenture was contained a clause amounting to a grant by Browne of an interest and inheritance to Lord Mountjoy, to dig for ore in the lands (which were great wastes) parcel of the said manor, and to dig turf also for the making of alum. And it was resolved by all the judges, that Lord Mountjoy might assign his whole interest to any one, two, or more: but then, if there were two or more, they could make no division of it, but work together with one stock; neither could Lord Mount

(p) Co. Litt. 164. b.

(q) Co. Litt. 67. b. 164. b. Dav. 61. b. (r) Co. Litt. 149. a. 164. b.