CHAP. VIII.

SEC. IV.

"difficult to make out, that he had not become respon"sible to his client."

66

66

"What opportunities of fraud would be afforded, if a party, who, having obtained an equitable conveyance, "conceals it from every body, and lies by for years, while "intermediate transactions are taking place, could at any "time come forward with his secret deed, and say to a subsequent purchaser, who had advanced his money in 66 ignorance of the existence of such a claim, My deed "is in date prior to yours; and, therefore, whatever may "have been my negligence, or your diligence, the property belongs to me?' Good sense, reason, authority, " and equity are all on the other side.

"The bill, therefore, must be dismissed, but, as against "Hall, without costs. I do not make the plaintiffs pay "costs to Hall, because they may have been losers with"out any intention to commit a fraud, and I am unwil"ling to add to their loss. Constructive fraud is the " utmost that can be imputed to them."

CHAPTER IX.

OF DEEDS OF PARTITION.

1. Of partition by simple conveyance among the parties. 2. Of partition by bill in equity.

3. Of partition by act of parliament.

SECTION I.

Of partition by simple conveyance among the parties.

tion.

Parceners and joint-tenants are compellable to make Modes of efpartition by a writ of partition, or a decree in Chancery. fecting a partiPartition may also be enforced by Act of Parliament; or, lastly, partition may be effected by a simple conveyance, on the agreement of the parties, where they are all free from disabilities, and able to join in the con

veyance.

among the

If the parties agree among themselves as to the shares Partition by to be held by each in severalty, they, and all persons agreement interested in the lands, may convey to a trustee as to parties. such a part, To the use of one of the parties in fee; and, as to such a part, To the use of another of the parties, &c., with covenants with each other for peaceable possession, free from iucumbrances, and for further assur

ance.

Care should be taken that all necessary agreements as to walls, buildings, fences, ways, &c., and as to the custody of the title-deeds, be inserted; and if

CHAP. IX.

SEC. I.

Means of par

holds.

there be any fee-farm-rents or annual sums payable out of the entire estate, they must be apportioned. If there be any terms of years attendant on the inheritance, these must be assigned to trustees for the different parties. If the share of any of the parties be in mortgage, the mortgagee must join in the conveyance to confirm the partition, and the specific share of the mortgagor may, by the partition deed, be limited to the mortgagee for a term, or in fee, subject to the usual proviso for redemption, with trusts for sale, &c., if there be such in the original mortgage-deed.

Partition may be made of copyhold lands, by surrentitioning copy dering the whole to trustees (if there be, for example, two undivided shares) as to so much, In trust for one of the parties, or upon such trusts as he shall declare by deed or will; And, as to the residue, In trust for the other party in the same way;—or a separate surrender of each share may be made.

Partition under a decree.

Partition by commissioners.

On a partition under a decree in Chancery, commissioners are appointed to divide the estate into so many lots as there are parties, and to allot the same to them in severalty, and a deed is generally prepared to the approbation of the master, for the parties to execute, and to confirm the division.

If a division is not made under the authority of the court, and the parties cannot agree upon the lots, they may convey to three commissioners, or trustees, In trust by such a day to make a partition, and for that purpose to make, or cause to be made, a survey or valuation of the premises, and to divide the same into (say) two equal parts, or lots,-the lots to be written in two schedules, and signed by the trustees, and inclosed, say, in two balls of equal size, to be put into a bag, and

drawn out by an indifferent person, the schedule in the ball first drawn to be certified by the commissioners as the lot of one of the parties, and the schedule in the other ball as the lot of the other party, and the commissioners must convey the same accordingly.

CHAP. IX.

SEC. I.

If there be incumbrances affecting the entire estate, Where there a term should be limited, of the specific share of each are incumbranparty after the partition is made, for raising and paying

a proportionate share of the incumbrances, and for indemnifying the other shares therefrom.

ces.

an undivided

share.

In all cases where an undivided share of lands is to Settlement of be settled on marriage, it should be vested in the trustees in fee, In trust to make a partition between them and the person or persons entitled to the other share or shares; and it must be directed, in the settlement, that the part of the lands which, on a division, shall fall to the lot or share of the trustees, and the undivided moiety of the lands until a partition be made, shall be held and enjoyed by, and conveyed to, the trustees upon such and such trusts; for if an undivided moiety of the freehold lands be in settlement, without this provision, a partition cannot perhaps be made for several years afterwards, except by a decree, which will bind the parties, and also the children as they come of age, or by an Act of Parliament. This power should also enable the trustees to raise gross or annual sums of money for the purpose of effecting the partition.

When the deed of partition is not delivered to each of the parties interested, it should be enrolled. Where the of title is in any respect intricate, there should be a fine, and also a feoffment,-if the slightest defect should appear in the derivation of the title to any of the shares. The title-deeds should be deposited in the hands of a Custody of the

title-deeds.

CHAP. IX.

SEC. II.

Attested copy should be

given to each

third person, with a covenant or agreement for the production of them.

An attested copy of the partition-deed should also be delivered to each of the parties, with a very full of the parties. abstract of the title-deeds; and, at the foot of the abstract, the professional gentlemen employed, in the business, should attest, that they had compared the abstract with the title-deeds.

Partition at common law.

SECTION II.

Partition by bill in equity.

Although parties may proceed at common law by writ of partition, yet where the titles of the parties are at all complicated, it is extremely difficult to proceed in a court of common law, and where the tenants in possession are seised of particular estates only, the persons in remainder cannot be bound by the judgment in a writ of partition, the consequence is, that courts of law are rarely resorted to for the partition of estates.

The mode of proceeding in equity is by filing a bill, praying for a partition of the estate, upon which it is usual for the court to issue a commission for that purpose to certain persons, who proceed to divide the estate, and make their return to the court. If this return be not objected to by any of the parties, the court will direct the performance of the partition, and order the parties to execute proper conveyances to each other of the shares allotted to them.