partition will have the same effect, in equity, as an actual partition at law."1

419. Deed or Agreement void as to one is void as to all.-If an agreement or deed intended to be entered into by several cotenants, whereby they mutually convey to one another distinct parts of the common property to hold in severalty, or whereby they agree to a sale of the property and a division of the proceeds, or to an allotment and partition of the property to be made by certain referees, and it happens that after several have executed the instrument, others fail to do so, or that though all executed it, some of them were femes covert and did not execute in a manner which will bind them, in either event, as it was clearly the intent of the parties that all of them should be bound, and as the consideration of the instrument is mutual conveyances from and between all the parties, the instrument being inoperative as to part is inoperative as to all."

12 Cruise, 410; Co.Litt. 169 a.

* Douglas v. Harrison, 2 Sneed, 382; Morris v. Richardson, 11 Humph. 389; Tewksbury v. O'Connell, 21 Cal. 69.

CHAPTER XIX.

OF THE COURTS HAVING JURISDICTION TO COMPEL PARTITION, AND · THE SOURCE AND NATURE OF THEIR AUTHORITY.

Partition at Common Law confined to Estates in Parcenary, § 420.

English Statutes extending the Right of Partition, § 421.

General Outline of a Partition at Law, § 422.

Origin and Rise of Chancery Jurisdiction, § 423.

Right to Partition in Chancery, whether absolute, § 424.

Advantages of Proceeding in Chancery, § 425.

Partition of Personal Property, § 426.

Difference between a Judgment and a Decree of Partition, § 427.

Jurisdiction over Partition in the United States, § 428.

Proceedings in Court exercising Common Law, Equity, and Statutory Jurisdiction, 429.

2420. Partition at Common Law.-It would be difficult to discover any contingency arising from any part of the law of ownership in which the situation of the parties in interest could be more unfortunate than that of cotenants at the common law, when they could no longer agree in regard to the use and management of their common property, or when one of them was so evil disposed as to take advantage of all the opportunities which the law of cotenancy afforded him for distressing his companions in interest, and of injuring the common property, and depriving them of all beneficial ownership therein. When the creation of the cotenancy was not the result of agreement, purchase, or the act of the parties, it was clear that they were in no way blamable for its existence, and the law early provided means by which either might terminate its existence, and obtain an estate in severalty in lieu of an undivided interest. Mr. Reeves, in his summary of the law of England, as it existed towards the end of the reign of Henry III. (A. D. 1272,) states that "when an inheritance descended to more than one heir, and they could

come to no agreement among themselves concerning the division of it, a proceeding might be instituted to compel a partition. A writ was for this purpose directed to four or five persons, who were appointed justices for the occasion, and were to extend and appreciate the land by the oaths of good and lawful persons chosen by the parties, who were called extensores; and this extent was to be returned under their seals, before the king or his justices: when partition was made in the king's court, in pursuance of such extent, there issued a seisinam habere facias, for each of the parceners to have possession." As the same author spoke of this reign as the period in which, after having travelled "through the profound darkness of the Saxon times, and the obscure mist in which the Norman constitutions are involved, we approach the confines of known and established law," it is probable that the proceedings for partition of which he wrote, though not mentioned before the reign of Henry III., were in existence at an earlier period, but are concealed from view by the "darkness" and the "obscure mist" of the more remote times. The writ of partition, as it existed at common law, could issue only at the instance of a coparcener, but the person against whom it issued might be either a coparcener, or one who had succeeded to the interest of a coparcener. The circumstances under which a coparcener was, and those under which she was not, entitled to this writ were thus stated by Mr. Roscoe in his Treatise on the Law of Actions relating to real property:" "A writ of partition lies at common law for one or more parceners against the other or others; and if one parcener, after issue had, dies, whereby her husband is tenant by curtesy, a writ of partition will lie against the husband. So, if one parcener aliens in fee, the other may, at common law, have the writ against the alienee; and if there are three coparceners, and the eldest marries, and the husband purchases the interest of the youngest, though the husband be in respect of his own part a stranger, yet he and his wife may have a writ of partition at common law against the middle sister, for he is seized of one part in the right of

1 Reeves Hist. 2d ed. (Dublin) 312; Finlason's ed. 335, citing Bracton, 71 b to 77 b. *P. 130.

3 Litt. sec. 264.

C. & P.-32

his wife.' If one parcener makes a lease for life, no writ of partition lies at common law, for she and her coparcener do not then hold the freehold insimul et pro indiviso according to the words of the writ, though if the lease be for years only, the writ lies for the freehold, then continues in parcenary. So, if one coparcener disseises another, no writ of partition can be had during the disseisin; and neither tenant by the curtesy, nor the alienee of a parcener, was entitled to this writ at common law."

2

421. English Statutes in regard to Partition.-Jointtenants and tenants in common became such by their own voluntary act. Their estates were always created by purchase; and whatever hardship or inconvenience might subsequently arise out of the co-ownership, it was always considered as the result of a relation voluntarily chosen by the parties, and from which the law would therefore grant them no relief. If any cotenant became dissatisfied with the cotenancy, and unwilling to continue his relations with the other cotenants, his only remedy consisted of purchasing their moiety, or of selling his own, or of making a voluntary partition with the other part owners. He could under no circumstances, except by the custom of some cities or boroughs, compel a partition. The inconvenience resulting to tenants in common and to joint-tenants from their inability to compel partitions was, in many instances, of the most grievous character. At length, by stat. 31 Henry VIII., cap. 1, tenants in common and joint-tenants of estates of inheritance held in their own rights, or in that of their wives, were compelled to make partition in "like manner as parceners by the common law of the realm were compelled to do." The preamble of this statute was more lengthy than the remedial part, and described in strong language the wrongs which it was intended to avert. As this statute applied only to joint

'Co. Litt. 175 a; Allnatt on Partition, 54; Bac. Ab. Joint-Tenants (I.) Co. Litt. 167 a.

3 Roscoe on Real Actions, 131; Allnatt on Partition, 55; Bac. Ab. Tit. Joint-Tenants 'I); Miller v. Warmington, 1 Jac. & Walk. 493; Baring v. Nash, 1 Ves. & B. 555.

* The following is the statute, 31 Henry VIII., referred to in the text: "Forasmuch as by the common laws of this realm divers of the King's subjects, being seised of manors, lands, tenements, and hereditaments, as joint-tenants, or as tenants in com

tenants and tenants in common of estates of inheritance, it remained for the legislative power of the realm to provide means to ameliorate the condition of cotenants of estates not of inheritance. This was soon afterwards done by the stat. 32 Henry VIII., cap. 32. This statute recited the passage of the previous act, the fact that such act made no provision for "joint-tenants and tenants in common, for a term of life or years, neither for joint-tenants and tenants in common where one or some of them have but a particular estate for term of life or years, and the other have estate or estates of inheritance;" and followed such recitals by an enactment "that all joint-tenants and tenants in common, and every of them,

mon, with other of any estate of inheritance, in their own rights, or in the rights of their wives, by purchase, descent, or otherwise, and every one of them so being jointtenants, or tenants in common, have like right, title, interest, and possession in the same manors, lands, tenements, and hereditaments for their parts or portions jointly. or in common undividedly together with other; and none of them by the law doth, or may know their several parts or portions in the same, or that that is his or theirs, by itself undivided, and cannot by the laws of this realm otherwise occupy or take the profits of the same, or make any severance, division, or partition thereof, without other of their mutual assents and consents: by reason whereof divers and many of them, being so jointly and undividedly seised of the said manors, lands, tenements, and hereditaments, oftentimes of their perverse, covetous and malicious minds and wills, against all right, justice, equity, and good conscience, by strength and power, not only cut and fallen down all the woods and trees growing upon the same, but also have extirped, subverted, pulled down and destroyed all the houses, edifices, and buildings, meadows, pastures, commons, and the whole commodities of the same, and have taken and converted them to their own uses and behoofs, to the open wrong and disherison, and against the minds and wills of other, holding the same manors, lands, tenements, and hereditaments jointly, or in common with them, and they have been always without assured remedy for the same.

"II. Be it therefore enacted by the King, our most dread sovereign Lord, and by the assent of the Lords Spiritual and Temporal, and by the Commons in this present Parliament assembled, that all joint-tenants, and tenants in common, that now be, or hereafter shall be of any estate or estates of inheritance in their own rights, or in the right of their wives, of any manors, lands, tenements or hereditaments within this realm of England, Wales, or the marches of the same, shall and may be coacted and compelled, by virtue of this present act, to make partition between them of all such manors, lands, tenements and hereditaments as they now hold or hereafter shall hold as joint-tenants, or tenants in common, by writ De participatione facienda in that case to be devised in the King our sovereign Lord's Court of Chancery, in like manner and form as coparceners by the common laws of this realm have been and are compelled to do, and the same writ to be pursued at the common law.

"III. Provided always, and be it enacted, that every of the said joint-tenants, or tenants in common, and their heirs, after such partition made, shall and may have aid of the other, or of their heirs, to the intent to deraign the warranty paramount, and to recover for the rate as is used between coparceners after partition made by the order of the common law; anything in this act contained to the contrary notwithstanding."