of lands in fee simple, it is good and firme for ever, albeit the values be unequall; but if it be of lands entailed, or if any of the parceners be of non sane memorie, it shall bind the parties themselves, but not their issues unlesse it be equall; or if any be covert, it shall bind the husband, but not the wife or her heires; or if any be within age, it shall not bind the infant; as shall be said more fully hereafter (1). The second partition followeth in the next Section. And here the (&c.) implyeth further, that if there be four parceners, then four parts, if five, five parts, Vide Sect. 241. and so forth. It further implyeth, that all this must be in severalty; whereof, and with what limitations this is to be understood, it hath been declared before. Sect. 244. A NOTHER partition there is, viz. to choose, by agreement betweene themselves, certaine of their friends, to make partition of the lands or tenements in forme aforesaid. And in these cases, after such partition, the eldest daughter shall choose first one of the parts so divided, which she will have for her part, and then the second daughter next after her another part, and then the third sister another part, then the fourth another part, &c. if so be that there be more sisters, &c. unlesse it be otherwise agreed between them. For it may be agreed between them, that one shall have such tenements, and another such tenements, &c. without any primer election. 31 Ass, 26. (1 Sid. 193. 269. Cro. Eliz. 664.) (1 Sid. 339.) "THEN the fourth another part, &c." Here the (&c.) implyeth the 5 sister, and after her the 6, and so forth. "For it may be agreed betweene them, that one shall have such tenements, and another such tenements, &c." Here by this (&c.) is implyed divers rules of law proving the conclusion of Littleton in this Sect. viz. Modus et conventio vincunt legem. Pacto aliquid licitum est, quod sine pacto non admittitur. Quilibet potest renunciare juri pro se introduct.' but with this limitation that these rules extend not to any thing, that is against the common-wealth or common right. For conventio privatorum non potest publica juri derogare. AND ND the part which the eldest sister hath, is called in Latine enitia pars. But if the parceners agree, that the eldest sister shall make partition of the tenements in manner aforesaid, and if she do this, then it is said, that the eldest sister shall choose last for her part, and after every one of her sisters, &c. (i) *. "ENITIA 8 See post. Sect. 255 to 258, inclusive. See also 173. b. Bract. li. 2.77. Fletalib. 5, ca. 9. ENITIA pars." It is called in old bookes *aisnetia, which is derived of the French word eisne for eldest, as much as to say the part of the eldest; for Bracton saith, quòd eisnetia semper est præferenda propter privilegium ætatis; sed esto, quòd filia primogenita relicto nepote vel nepte in vitá patris vel matris, decesserit, præferenda erit soror antenata tali nepoti vel nepti quantum ad eisnetiam, quia mortem parentum expectavit. And herewith agreeth Fleta, also, quod nota: whereby it appeareth that enitia pars is personall to the eldest, and that this prerogative or priviledge descendeth not to her issue, but the next eldest sister shall have it. [f] And here is a diversity to be observed [ƒ] 45 E. 3. betweene this case of a partition in deed by the act of the parties, fines 41. 19 E. 3. for there the priviledge of election of the eldest daughter shall quar. imp. 59. not descend to her issue; and where the law doth give the eldest 18 E. 2. ibid. any priviledge without her act, there that priviledge shall descend. 176. 5 H. 5. 10. 38 H. 6. 9. As if there be divers coparceners of an advowson †, and they Doct. & Stud. cannot agree to present, the law doth give the first presentment 116, 117. Vid. to the eldest; and this priviledge shall descend to her issue; Bract. 238. 249. nay her assignee shall have it (2); and so shall her husband, †5 H. 7. 8. that is tenant by the curtesie, have it also (3). 34 H. 6. 40. 11 H. 4. 54. 20 E. 3. quar. imp. 63. 34 E. 3. ibid. 198. 15 E. 3. Dar. "Then it is said that the eldest sister shall choose last, &c." By this and the &c. in the end of this Section is implyed, the rule of law is, cujus est divisio, alterius est electio. And the reason of the law is for avoyding of partiality. 21 E. 3. 21. F. N. B. 32. Presentment 11. 17 E. 3. 20, 21. (Post. 186. b.) (2) Acc. P. 18 E. Quare Impedit 176. Post. 186. b. 3 Co. 22. b. 2 Inst. 365. 2 Ro. Abr. 346. Mallory's Quare Impedit 145. Three judges also held accordingly, East. 23 Eliz. in Harris & Hales v. Nichols, Cro. Eliz. 18. But Anderson chief justice doubted, whether a grantee should have the privilege. In Keilwey there is a case of 18 H. 7, in which Frowike chief justice is made to give it to the grantee of the eldest sister, only where it has been once exercised by herself. But he afterwards doubted his own distinction, and seemed to incline to the grantee's right generally; in consequence of which the report concludes thus: Stude bene et quære. Keilw. 49. Upon the whole therefore it seems, that the point is not quite settled; and to determine it properly would require a very careful examination of the numerous cases cited by lord Coke here and in the Second Institute. See 7 Ann. c. 18. I was led into this note by a reference to the case from Cro. Eliz. in a Coke upon Littleton of the late mr. Beversham Filmer, and by an opinion of the same very learned gentleman, in which he represents the point to be doubtful, and therefore dissuaded accepting the title to the next presentation of an advowson belonging to three sons as heirs in gavel-kind, unless they would all join in the grant. The eminence of mr. Filmer as a barrister, more especially in the conveyancing line, will, I presume, fully justify me for thus introducing his name. The doubts of a lawyer so profound and correct, as he was universally allowed to be, will ever claim high respect; and it is with peculiar pleasure that I take this opportunity of expressing the veneration with which I hold him in my remembrance. -[Note 13.] (3) Agreed by lord Anderson in the case from Cro. Eliz. cited in the preceding note. (Ipsa etenim leges cupiunt ut jure regantur) which might apparently follow if the eldest might both divide. and choose (4). Now followeth the third partition in deed. Sect. 246. ANOTHER partition or allotment is, as if there be four parceners, and after partition of the lands be made, every part of the land by itself is written in a little scrowle and is covered all in waxe in manner of a little ball, so as none may see the scroule, and then the 4 balls of waxe are put in a hat to be kept in the hands of an indifferent man, and then the eldest daughter shall first put her hand into the hat, and take a ball of waxe with the scrowle within the same ball for her part, and then the second sister shall put her hand into the hat and take another, the 3 sister the 3 ball, and the 4 sister the 4 ball, &e. and in this case every one of them ought to stand to their chance and allotment. * Flet. lib. 5, ca. 9. Bracton, lib. 2. 75 Britton, cap. 72. Vide Numbers, ca. xxvi. ver. 54, 65, & ca. xxxiii. ver. 54, of division by lots. [167] ALLOTMENT." Of this partition by lots ancient authors write, that in that case coparceners fortunam faciunt judicem. And Littleton here termeth it chance; for in the end of this Section he saith, that in this case every of them ought to hold herselfe to her chance; and of this kind of division you shall read in holy scripture, where it is sayd, dedi vobis possessionem quam dividetis forte. The &c. in the end of this Section implyeth, that if there be more coparceners there must be more balls according to the number of the parceners. Sect. 247. ALSO, there is another partition. As if there be four parceners, and they will not agree to a partition to be made between them, then the one may have a writ of partitione faciendâ against the other three, or two of them may have a writ of partitione faciendâ against the other two, or three of them may have a writ of partitione facienda against the fourth, at their election. HERE followeth the fourth partition in deed. Littleton having spoken of voluntary partitions, or partitions by consent: now he speakes of a partition by the compulsary means of law where no partition can be had by consent. Now of what inheritance partition may be made by the writ of partitione facienda may partly appeare by that which hath been sayd. Moreover it is to be observed that the words of the writ de partitione faciendâ be* quòd cùm eædem A. et B. insimul et prò indiviso * 3 E. 3. 47, 48. teneant tres acrás terræ cum pertinen', &c. And note that this word (tenet) (4) See Hob, 107, where the doctrine is cited with approbation. 28 (tenet) (1) in a writ doth alwayes imply a tenant of a freehold. And therefore [g] if one coparcener maketh a lease for yeares, [g] 21 E. 3. 57. yet a writ of partition doth lie (2). But if one or both make a F. N. B. 62, g. lease for life, a writ of partition doth not lye between them: H. 6. 2. because non insimul et pro indiviso tenent, they do not hold the H. 4. 3. H. 7. 10. b. freehold together, and the writ of partition must be against the (Post. 176. b.) tenant of the freehold. [h] If one coparcener disseise another, [h] 4 H. 7. 9. during this disseisin a writ of partition doth not lie between 11 Ass. 23. them; for that non tenent insimul et pro indiviso. (Post, 167. b. 187. a.) But there be other partitions in deed than here have been mentioned. [i] For a partition made between two coparceners, that the one shall have and occupy the land from Easter untill the first of August only in severalty by himselfe, and that the other shall have and occupie the land from the first of August untill the feast of Easter yearely to them and their heires, this is a good partition (3). Also if two coparceners have two mannors by descent, and they make partition, that the one shall have the one manor for one yeare, and the other the other manor for this yeare, and so alternis vicibus to them and their heires, this is a good partition. The same law is, if the partition be made in forme aforesaid, for two or more yeares, and each coparcener have an estate of inheritance, and no chattell, albeit either of them alternis vicibus have the occupation but for a certaine terme of yeares. [167] Of partitions in law, some be by act in law without judgement, and some be by judgement, and not in a writ de partitione faciendâ. And of these in order. [] Temps £1. [k] If there be lord, three coparceners mesnes, and tenant, and [k] 36 H. 6. 7. one coparcener purchase the tenancy, this is not onely a partition (Post, 192, a.) of the mesnalty, being extinct for a third part, but a division of the seigniory paramount, for now he must make severall avowries (1). [1] If one coparcener make a feoffment in fee of her part, this [37 H. 6. &. is a severance of the coparcenarie, and severall writs of præcipe 43 E. 3. 1. shall lie against the other coparcener and the feoffee (2). [m] If two coparceners be, and each of them taketh husband [m] 17 E. 3. 14, and have issue, the wives die, the coparcenary is divided, and here is a partition in law. 15. [n] 12 E. 3. Judgm. 162. 7 Ass. 10. 28 Ass. 35. 23 Ass, 18. 3 E. 4. 10. [n] If two coparceners be, and one disseise the other, and the disseisee bringeth an assise, and recover, it hath beene said, that 7 E. 3. 49. 10 Ass. 17. 12 Ass. 5. 17. 10 E. 3. 40. 43. 20 E. 3. Ass. 62. 3 E. 3. 48. b. 19 H. 6. 45. 7 H. 6. 4. she (1) See the various applications of the verb tenet explained ant. fol. 1. a. & b. (2) So too execution of dower is not prevented by a lease for years subsisting at the husband's death. Ant. 32. a. How lessee for years is affected by such a partition, is before explained by lord Coke in fol. 46. a.--[Note 14.] (3) Sec the case of a moveable fee simple, stated ant. fol. 4. a. (1) But according to Bro. Nouv. Cas. 108, the lord should have notice of the partition. [Note 15.] (2) Acc. ant. 67. b. post. 175. a. 195. a. But this sort of partition is not a partition in the sense in which Littleton writes of partitions, nor in the common sense of the word. He means a division of the land itself; whereas what lord Coke here calls a partition is a mere severance of the unity of title, which operates, as Littleton afterwards states, by making a tenancy in common. Sect. 309.-[Note 16.] See Bract. lib. 4. fo. 216. b. [0] 3 E. 3.48. 21 R. 2. tit. nuper ob. 22. 4 H. 7. 10. she shall have judgement to hold her moity in severalty. And this seemeth (say they) verie ancient, and thereupon vouch Bracton, si res fuerit communis, locum habere poterit communi dividendo judicium. And [o] so (say they) if the one coparcener recover against another in a nuper obiit or a rationabili parte, the judgement shall be, that the demandant shall recover and hold in severalty. But Britton is to the contrary; for he saith, * et si ascun des parceners soit enget ou disturbe de la seisin per ses auters parceners, un, ou plusors, al disseisee viendra assise per severall pleint sur les parceners et recovera, mes nemy a tener en severaltie, mes en common solonque ceo que avant le fist, &c. [p] And this [P] 6 Co. 12, & seemeth reasonable; for he must have this judgement according to his plaint, and that was of a moitie, and not of any thing in severaltie, and the sherife cannot have any warrant to make any (Post. 187. a.) partition in severalty or by metes and bounds. 30 E. 1. nuper F. N. B. 9. b. 119. a. 13. Morrice's case accord. Sect. 248. AND when judgement shall be given upon this writ, the judgment shall be thus; that partition shall be made betweene the parties, and that the sherife in his proper person shall go to the lands and tenements, &c. and that he by the oath of 12 lawful men of his bailiwick, &c. shall make partition between the parties, and that one part of the lands and tenements shall be assigned to the plaintif or to one of the plaintifs, and another part to another parcener, &c. not making mention in the judgement of the eldest sister more than of the youngest. Brit. 71, &c. Bract. fo. 66, &c. NOTE, the first judgement in a writ of partition, whereof Littleton here speaketh, is quòd partitio fiat inter partes prædictas de tenementis prædictis, cum pertinentiis, after which judgement. By this &c. viz. tenements, &c. is implyed, that a writ shall be awarded to the sherife, quod assumptis tecum 12 liberis et legalibus hominibus de vicineto tuo, per quos rei veritas meliùs sciri poterit, in propria personá tuâ accedas ad tenementa prædicta cum pertinenibus, et ilidem per eorum sacramentum, in præsentid partium (3) prædictarum per te præmuniendarum si interesse voluerint, (3) These words, enjoining the partition to be made in the presence of the parties, shew that the proceeding before the sheriff is quite open. So too, as it seems, should be the execution of a commission of partition issued by chancery as a court of equity, such commission being in nature of a writ at common law for the like purpose. But I understand, that there have been instances of treating the commission of partition as a close proceeding, and that on that idea it has been sometimes the practice to annex an oath of secrecy to the commission. This practice, I presume, has grown from not attending to the difference between commissions to divide lands and commissions to examine witnesses merely. In the latter sort of commission an oath to keep the depositions secret is expresly required by an order of chancery of the 9th of February 1721; and exclusively of the order the proceeding implies secrecy, the deposi tions being ever kept close under seal till leave is cbtained to divulge them by the passing of publication. But neither the language nor spirit of this order is applicable to commissions of partition, which like the writ of partition ought to be openly executed.—{Note 17.] |