fire places, the only stair-case in the house, and all the conveniences in the yard! But Lord Eldon over-ruled the exception, saying he did not know how to make a better partition for the parties; that he granted the commission with great reluctance, but was bound by authority; and it must be a strong case to induce the Court to interpose, as the parties ought to agree to buy and sell. (m).

However, if the subject matter of partition is divers, and there are other lands, &c. to make up the shares, it is not necessary that every part should be divided. Care must undoubtedly be taken, that the parties have the value of their shares allotted to them: but there is no colour of reason that any part of the estate should be lessened in value, by dividing the whole. If there be three houses of different value to be divided among three, it would not be right to divide every house, for that would be to spoil every house; but some recompence is to be made, either by a sum of money, or rent for owelty of partition, to those that have the houses of less value. (n)

Thus where partition was decreed of an estate consisting of a great house and park, and farms and lands about it; the defendant (to whom one third belonged, one of the plaintiffs and his wife

(m) See 11 Ves. 157. note. 17 Ves. 546. note.

(n) Clarendon v. Hornby, 1 P. Wms. 446. Vid. supra, Chap. II. Sect. I.

being entitled to the remaining two thirds) insisted to have one third of the house and also one third of the park assigned him by the commissioners; and it was urged in his behalf, that as at law, in case of a writ de partitione facienda, a tenant in common should have half the house, every other toll dish, and every other turn of a church, &c. (o) so equity in the present case followed the law. But Lord Chancellor Parker said, that if the defendant should have one third of the house and of the park, this would very much lessen the value of both. By the same reason every farm house upon the estate must be divided, which would depreciate the estate, and occasion perpetual contention; and it might be the intent of the defendant when this partition was made to compel the plaintiff to give him forty years' purchase for his third of the house and park. Therefore, since the plaintiff and his wife had two thirds, he recommended, that the seat and park should be allotted to them; and that a liberal allowance cut of the rest of the estate should be made to the defendant, in lieu of his share of the house and park. (p)

The principle observed on partition is, that if the thing divided is given with due regard to the value of that thing among the parties, it is no objection that it is given, so as not to increase the value of other property, not the subject of the par

(o) Supra, Chap. III. Sect. I.

(p) Clarendon v. Ilornby, ubi supra.

tition. In many cases, a man might say, another should not have two thirds of a field contiguous to his mansion-house, without paying a price on account of its value to him, with reference to that situation. (q)

It remains to be observed, that if the property lies in Ireland, the Court does not decree a partition, for a bill for partition is in the nature of a writ of partition which lies not for land in another kingdom. (r)

SECT. III.

For and against what Persons, in respect of estate and other circumstances, Partition will be decreed, and how their Titles, &c. must be stated.

WE shall see, hereafter, that when a partition is made pursuant to a decree in equity, it is finally perfected by mutual conveyances of the allotments made to the several parties. If they are not competent to execute the conveyances, the partition cannot be effectually had (a) It may therefore be stated as a general proposition, that partition will be decreed for and against such persons as are able

(q) Watson v. Duke of Northumberland, 11 Ves. 162. (r) 2 Ch. Ca. 189. 214. 1 Vern. 421. Com. Dig. Ch. 4 (E.) (a) Whaley v. Dawson, 2 Sch. and Lefr. 367.

of particular estates, together with the reversioners or remainder-men, are made parties, partition may be well made, because they are together competent to convey the whole interest. But if the reversioner or remainderman is not joined; then, although partition will be decreed, because the particular tenant would be entitled to it at law, yet it will be only of temporary duration (b)

It often happens, that property is so settled, as that persons hereafter to come in esse may eventually be entitled, together with the present proprietors, under a contingent remainder, executory devise or shifting use. It seems that this is no objection to a partition: but then, of course, it can only be a partition commensurate with the interest to be conferred by the conveyances of the parties.

R. W. was tenant for life of an undivided moiety, with remainder to all the children of his body, to be begotten, equally as tenants in common in tail, with cross remainders among them in tail. R. W. and his four infant children filed a bill against the persons entitled to the other undivided moiety. An objection was taken, from the possibility of other children. But Lord Eldon is represented as saying, "At all events, you are entitled to a parti

(b) See Baring v. Nash, 1 Ves. and Beam. 551.

tion during the life of the tenant for life. But I think this is no objection; for if so, in every case where there is a settled estate, with remainders to persons who may come in esse, there never can be a partition." And he decreed a commission for partition. (c)

And it is apprehended, there never can be a permanent partition, until such remainder men are ascertained, and brought before the court. (d)

A lessee for years, as well as other particular tenants, may compel partition in equity.

Lessee for a long term of years in one-tenth part brought a bill for partition against the owners of the inheritance of the other nine-tenths; and a ground of demurrer was taken, that without the owner of the inheritance of the one-tenth part, the court had not all the parties interested in the subject; and therefore could not make an effectual decree for a complete partition of the whole estate, binding all parties interested in the estate. But Sir Thomas Plumer, V. C. over-ruled the demurrer; for if the owner of the one-tenth share had been made a party, the owner of the term could not compel him to join in this partition, and pray this relief against his will, that he might be decreed to concur with the other parties, in making

(c) Wills v. Slade, 6 Ves. 498.

(d) See Mitf. 97.