ficial to the cestuis que trust, who were infants, the court, on a claim to which the infant cestuis que trust were parties, made a decree that the lands should be taken to be divided according to the partition already made. Ib.

C. AGREEMENTS FOR PARTITION. Bond.-Bond given by parceners to pay to the other parcener, his executors or administrators, an annual sum during the life of J. S. for owelty of partition, shall go to the executor and not to the heir. Hulbert v. Hart, 1 Vern. 133.

Parol Partition.]-Partitions between tenants in tail, though only by parol, shall bind the issue. Thomas v. Gyles, 2 Vern. 233.

The agreement of husband for partition of his wife's estate was not binding on her. Ireland v. Rittle, Atk. 542.

A parol agreement for an equality of partition of long standing, by persons who had right to contract, and accordingly put in execution, will be established. And if a joint tenant upon equality of partition think proper to accept of a contingent uncertain advantage, where one moiety is of superior value to the other, it will not vacate the agreement. Ib.

A partition by parol and separate possession cannot be questioned after being acted on for more than twenty years. Paine v. Ryder,

24 Beav. 151.

A. and B., devisees in common under their father's will, make a verbal agreement, which is afterwards carried into effect and acted on during their joint lives, to divide the land devised to them, A., the elder brother, taking the larger share in consideration of a right alleged on his part to take the whole by virtue of a supposed entail. A. was actually at the time so entitled, with remainder in tail to his brother B. Upon the death of A., without issue, B., whose title under the entail thereby accrued, and who was not proved to have been aware of such title till after the death of A., repudiated the agreement and brought ejectment for the whole of the lands. He was decreed, at the suit of A.'s devisees, to carry into effect the agreement by cutting off the entail, on the ground that it was a family arrangement acted on for many years, and that A. prevented by the agreement from inquiring further, and so discovering and enforcing his title to the whole. Neale v. Neale, 1 Keen, 672. Affirmed, Id. 684, n.

was

Copyhold Estate-Tenants in Common in Tail.] -Two tenants in common of a copyhold estate in tail agree upon a partition; each surrenders the part allotted to the other :-Held, the entail was barred only as to a moiety. Oakley v. Smith, Amb. 368; 1 Eden, 261.

Joint Tenants.]—The court might enforce the specific performance of an agreement between joint tenants of a copyhold estate to divide the land and hold the respective parts in severalty, and decree the parties to make mutual surrenders for that purpose; although before the stat. 4 & 5 Will. 4, c. 35, the court had no jurisdiction, in a mere suit for partition, to decree the partition of copyholds. Bolton v. Ward, 4 Hare, 530; 14 L. J., Ch. 361; 9 Jur. 591.

Subsequent Conveyance and Devise.]-Agreement for a partition established against a conveyance and against a devise, it operating as a revocation by depriving the testatrix of all interest in the estate devised. Knollys v. Alcock, 5 Ves. 618.

Conveyance to Trustees in Trust to Sell and Purchase other Estates.]-Conveyance to trustees in trust to sell, and purchase other estates, to be settled. Those entitled under the limitations directed of the estates to be purchased, have equitable interests co-extensive until sale. Therefore a specific performance was decreed of an agreement for partition, against an objection to a title under a fine by a person who would have been tenant in tail of the estates to be purchased, the effect being an election to keep the estate, binding the trustees; though it may be questionable whether they could take upon themselves to convey in fee to a person entitled to an estate tail only. Pearson v. Lane, 17 Ves. 101.

D. PROCEEDINGS FOR PARTITION.

1. PLEADING.

Title in Plaintiff.]-A bill in equity for partition is in analogy to the proceeding at law, and should be so framed that there shall be a party substantially interested, plaintiff and defendant. Lowe v. Franks, 1 MoÎl. 137.

On a bill for a partition, plaintiff must show a title in himself, and not allege generally that he is in possession of a moiety. Cartwright v. Pulteney, 2 Atk. 380.

as

а

Bill for a partition against D.; D. by his answer sets up a partition made several years ago, evidence whereof (amongst other things) he states that plaintiff acted upon moiety of the premises, as his several estates, and particularly that he made a lease of part thereof to C.; plaintiff amends his bill, making C. a party, charging, that the lease to him was made under circumstances of fraud and imposition, and praying, as against C., that the lease may be set aside, still praying a partition only as against D.; demurrer by D., to the whole bill, for that it is exhibited against several persons for several and distinct matters, allowed; plaintiff ought first to have filed his bill against C. only to impeach the lease. Whaley v. Dawson, 2 Sch. & Lef. 367.

The bill stated that the lands of B., part of which contained 159 acres, and part 46 acres, had been for many years previous to boundaries became confused; that, in 1804, A. 1794 held by the same tenants, so that the

was seised in fee of the 159 acres, and held the 46 acres under a lease of H. for a term; that the measurings and boundaries of the 46 acres had not since been ascertained, the entire of the lands having been since the lease, as they had been for 100 years before, held by the same persons who were owners of the feesimple lands; that they had been so mixed up, that it was impossible to discover the boundaries, or to ascertain where the 46 acres were situated. The bill, after reducing the title of the plaintiff from it, stated that the defendant claimed to be entitled to the 46 acres as assignee of H., and that the plaintiff's interest under the lease had determined, and prayed a partition, or a commission to ascer

tain the boundaries :-Held, on a demurrer, that it could not be sustained for a partition, as no title to a partition at law was shown, nor as a bill to ascertain boundaries, as the parties were independent proprietors, the inference being, that the defendant was in possession of the 46 acres, and that the owner of the feesimple lands, and not the defendant, was responsible for the confusion of boundaries. O'Hara v. Strange, 11 Ir. Eq. R. 262.

Prayer of Bill.]-In a suit for a sale under the Partition Act, 1868, the bill ought to pray for partition as well as sale. Teall v. Watts, 40 L. J., Ch. 176; L. R. 11 Eq. 213; 23 L. T. 884; 19 W. R. 317.

A sale may be decreed although the bill contains no prayer for partition. Aston v. Meredith, 40 L. J., Ch. 241; L. R. 11 Eq. 601; 24 L. T. 128.

Tenants in Common or Parceners.] Semble, a partition may be made as between more than two tenants in common or co-parceners. Bradshaw v. Fane, 3 Drew. 534; 25

2. PARTIES INTERESTED.

a. In General.

Right of Defendant to Continuation of all Original Plaintiffs.]-Right of defendants under a decree reserving costs, to a continued representation of all the original plaintiffs (though not necessary parties), as a security for costs. Blackburn v. Jepson, 3 Swanst. 138.

Objections for want of parties, removed by acts of defendants. Id. 139.

Parties to a bill for a partition. Ib.

Purchaser of Entirety of Messuage.]-The bill alleged that the plaintiff had purchased the entirety of a messuage, but that the defendants claimed a moiety thereof, and refused to produce the instrument under which they claimed; and that the plaintiff, believing their claim to be good, had joined with them in granting a lease; and it prayed a discovery and partition. Demurrer for want of equity overruled. Potter v. Waller, 16 L. J., Ch. 480; 11 Jur. 464.

Sub-Purchasers.]-In decreeing a partition the court will have regard to the convenience of any sub-purchasers from either of the parties. Story v. Johnson, 2 Y. & C. 586.

Lessees.]-Tenants or persons having partial interests not necessary parties to suit for partition. O'Reilly v. Vincent, 2 Moll. 330.

One tenant in common having leased his share, on a bill for partition the lessee is a necessary party, and his costs must be borne by the lessor. Cornish v. Gest, 2 Cox, 27.

Reversioner in Fee.]-A reversioner in fee expectant on a lease of lives renewable for ever is a proprietor within the meaning of the 5 Geo. 2, c. 9, and must be served with a copy of the petition to divide bog. Kelly v. Shelton, 1 Jones, 555.

The court has jurisdiction to amend a petition order and commission of partition, under the 5 Geo. 2, c. 9, by inserting therein the name of the party served with the conditional order. S. C., 2 Jones, 351.

b. Absent Parties.

Partition Act, 1868. ]-The 31 & 32 Vict. c. 40, does not render it compulsory upon the court to pronounce a decree in the absence of any of the parties interested. Dodds v. Gronow, 20 L. T. 104; 17 W. R. 511.

Heir-at-Law.]-A question on the construc tion of a will of realty was raised in a partition suit between two persons claiming under a devise the heir-at-law did not appear. pronouncing the decision, it was declared that that decision must be considered as pronounced without prejudice to any rights which the heirat-law might claim to possess. Atkinson v. Holtby, 10 H. L. Cas. 313.

Service of Notice of Decree.]-The court will not allow a sale, which has been decreed under the act, to be proceeded with until all persons interested have been served with notice of the decree, but will allow such service to be effected by advertisement upon persons out of the jurisdiction, and who cannot be found, with libery for the plaintiffs to apply as to proceeding with the sale in case the absent parties do not come in after the advertisement. Peters v. Bacon, 38 L. J., Ch. 571; L. R. 8 Eq. 125; 20 L. T. 729; 17 W. R. 782.

An immediate decree for sale may be made, although one of the parties interested is out of the jurisdiction; but the decree must be served on the absent party before the sale is proceeded with. Teall v. Watts, 40 L. J., Ch. 176; L. R. 11 Eq. 213; 23 L. T. 884; 18 W. R. 317.

When one of the parties, entitled to a small fraction of an estate, was out of the jurisdiction, and had not been served, and it did not appear that any attempt had been made to serve him :Held, that a decree for sale could not be made in his absence. Hurry v. Hurry, 39 L. J., Ch. 824 L. R. 10 Eq. 346; 22 L. T. 577; 19 W. R. 829.

Payment out to Trustees of Proceeds of Sale-Married Women out of Jurisdiction. The court will not make an order for payment out to trustees of money produced by a sale under the Act of 1868, where it has been paid into court, and some of the persons interested are married

women, and resident in Australia. Aston v. Meredith, L. R. 13 Eq. 492; 26 L. T. 281.

Inquiry whether Absent Parties within Jurisdiction.]-The court has jurisdiction to direct an immediate sale in a partition suit in the absence of parties interested in the property, but shown to be out of the jurisdiction. But where it was uncertain whether such absent parties were or were not within the jurisdiction, an inquiry was directed as to the persons interested in the property and their shares therein, and whether such persons were out of the jurisdiction. Silver v. Udall, 39 L. J., Ch. 118; L. R. 9 Eq. 227; 21 L. T. 660; 18 W. R.

665.

Order for Sale.]-On the further consideration of a partition suit it appeared from the

chief clerk's certificate that it was not known whether one of the parties who, if living, would be entitled to one-twenty-fourth of the property was alive or dead. He had not been heard of for fourteen years. All the other persons interested appeared and asked for a sale. A sale was ordered accordingly. Jackson v. Lomas, 23 W. R. 744.

An order for sale of real estate under the Partition Act, 1868, cannot be made at the hearing, unless all persons interested in the property are parties to the cause. Mildmay v. Quicke, L. R. 20 Eq. 537.

The decree in a partition suit may order a sale, if all parties interested in the estate are parties to the cause, or have been served with notice of decree, and none of them object to a sale. Harper v. Bird, 32 L. T. 428; 23 W. R. 646. In a suit for partition or sale the minutes of decree should contain a direction for sale if it appears that all persons interested are before the court, and that those representing a moiety of the property desire a sale. Underwood v. Stewardson, 26 L. T. 688; 20 W. R. 668.

Sale of Estate

c. Infants.

Costs declared Charge on Infant's Share. An infant being entitled to one-ninth of a real estate, and it being for her benefit, the court, instead of directing a partition, declared the costs a charge on the infant's share, and ordered a sale of the whole estate. Davis v. Turvey, 32 Beav. 554; 2 N. R. 151; 8 L. T. 378; 11 W. R. 679.

Where part of an estate held in undivided shares (one share belonging to an infant), is contracted to be sold, and a bill is filed to carry out that contract and incidentally asks a partition: the court will direct a sale of the whole by consent, the infant's costs being a charge on his share. Smith v. Birch, 18 L. T. 174.

Partition Decreed at Hearing.] - Partition decreed at the hearing without a commission upon the affidavit of two surveyors, with evidence of the partition of the property, showing the fairness of the proposed division, all parties except an infant defendant desiring it, and his father deposing that the proposed partition was for the infant's benefit. Stanley v. Wrigley, 3 Eq. R. 448; 3 Sm. & G. 18; 24 L. J., Ch. 176; 1 Jur. (N.s.) 695; 3 W. R. 202.

a commission, in a case in which infants were interested, upon satisfactory evidence of the value. Greenwood v. Percy, 26 Beav. 572.

In a suit for the partition of property in which infants are interested, the court will refuse to enforce a partition not made under a commission; even at the instance of the infants, and on the allegation of their counsel that it will be for their benefit. Semble, in such a case, the proper course is to direct a commission to issue. Howard v. Barnwell, 1 N. R. 172-L.JJ.

Reference to Chambers.]-On a suit for the

partition of property in which an infant is

interested, the court will direct a reference to chambers without a commission. Bull v. Bull, 18 L. T. 870.

Sale requested by Infant Plaintiff.] In a suit under the Partition Act, 1868, for the confirmation of a conditional contract for sale of land to which the infant plaintiff and the infant defendant were entitled as co-heiresses, subject to the dower of their mother, an order was made confirming the original contract and directing a sale, and the decree was prefaced by a recital that a sale appeared more beneficial than a division and that the infant plaintiff requested Grove v. Comyn, L. R. 18 Eq. 387;

a sale.

22 W. R. 723.

When infants prayed for a declaration that premises were divisible amongst them and a defendant, and that the costs of the suit might be taxed, and the plaintiffs' costs declared to be a charge on their shares: for a partition, or sale, and, after payment of the costs, for a division of the proceeds; the court made a declaration as to the rights of the parties, and directed a sale, but declined to make any order as to the

costs until the further consideration of the cause.

269.

Davey v. Wietlisbach, L. R. 15 Eq.

Next Friend or Guardian ad litem.]-In a partition action the request for sale on the part of an infant (Partition Act, 1876, s. 6) may be made by his next friend or guardian ad litem, as being the "person authorised to act on his behalf in the action : the word "guardian" in the section meaning guardian ad litem. Rimington v. Hartley, 14 Ch. D. 630; 43 L. T. 15 ; 29 W. R. 42.

The court will not comply with a request for sale made on behalf of an infant under the above section unless it is satisfied that a sale is for the benefit of the infant. Ib.

The consent required by s. 6 of the Partition Act, 1876, of an infant to a sale must be made by the infant's guardian, and not by a next friend or a guardian ad litem. So, where a sale was desired in a partition action, and the infant parties had no guardian, the court intimated that it would appoint their mother on an should appoint the guardian, and recite that the infants by their guardian requested a sale, and go on to order a sale accordingly. Platt v. Platt,

affidavit of fitness, and directed that the order

28 W. R. 533.

prayed at the time of filing his bill, the defect is not cured by his acquiring a title after bill filed and amending his bill. Ib.

h. Married Women.

Equitable Estates-Overriding Trusts.] -Under a will two persons were equally entitled to real property for life, with remainder to their children and issue, who were not yet ascertained. The trustees of the will had, during the lives of the tenants for life, powers of working a quarry on the estate, and making roads, &c., over the property for the purpose, and were directed to work the quarry, and divide the profits among the persons entitled:-Held, that while the overriding power and trust existed, the court had no jurisdiction to make a decree for partition or sale under the Partition Acts. Taylor v. Grange, 49 L. J., Ch. 794; 15 Ch. D. 165; 43 L. T. 233; 28 W. R. 93.

The court will not, in a partition case, order the party objecting to the non-service of reversioner to disclose his name, &c., to the petitioner, but will not give him the costs of the day unless he undertakes to do so. Kelly v. Shelton, 1 Jones, 555.

The petition will be allowed to stand over to give the petitioner time to effect such service.

Ib.

g. Tenants in Tail.

Partition by Parol.]- Partition between tenants in tail, though only by parol, shall bind the issue. Thomas v. Gyles, 2 Vern. 233.

Bill for writings and a partition, defendant insists the plaintiff has no title, and there is an entail subsisting. The court gave the plaintiff a year's time to try his title. And upon a trial in ejectment, verdict for the plaintiff, upon coming in upon the equity reserved, it was insisted, this being a matter of right of inheritance, defendant ought not to be bound by one trial, sed non allocat', it being a decree only for a partition. Sed quære. Blynman v. Brown, 2 Vern. 232.

Power of Court to bar Lunatic's Estate Tail.] -The court, under its lunacy jurisdiction, has power to bar the estate tail of a lunatic tenant in tail; but it is the duty of the court so to exercise it as not to affect the rights of the persons entitled in remainder to the estate. Where a lunatic was tenant in tail of an undivided share of an estate, and an action was brought for the partition of the estate, the court, under s. 6 of the Partition Act, 1868, authorised the committee of the lunatic to request a sale and to join in conveying the estate to the purchaser, but directed that the proceeds of the sale should be subject to the same uses as the lunatic's estate was subject to before the sale. Pares, In re, Lillingston v. Pares, 12 Ch. D. 333; 41 L. T. 574; 28 W. R.

193.

Conveyances.]-See post, col. 353.

Sale-Request by Married Woman.]-The court will under the Partition Act, 1868 (31 & 32 Vict. c. 40), make a decree for sale, instead of partition, at the request of a feme covert. Higgs v. Dorkis, 41 L. J., Ch. 150; L. R. 13 Eq. 280; 25 L. T. 903; 20 W. R. 279.

Request by her Counsel.]-In a partition action by a married woman and her husband her request for sale may be made by her counsel authorised to act on her behalf. Crookes v. Whitworth, 10 Ch. D. 289; 39 L. T. 348; 27 W. R. 149.

In a partition action a request for sale on the part of a married woman, under s. 6 of the Partition Act, 1876, should be made by a person especially authorised to act on her behalf in the action: a request by her counsel is not sufficient. Crookes v. Whitworth (10 Ch. D. 289) not followed. Wallace v. Greenwood, 50 L. J., Ch. 289; 16 Ch. D. 362; 43 L. T. 720.

In a partition action a request for sale on behalf of a married woman was directed to be

made in writing, signed by her, authorising and requesting her solicitor to instruct counsel to ask for a sale. Grange v. White, 50 L. J., Ch. 620; 18 Ch. D. 612; 45 L. T. 128; 29 W. R. 713.