PART II. CLASS IV. Joint-Tenants, Coparceners and Tenants in Common.* [No. I. ] 13 Edward 1. st. 1, c. 22.-Waste maintainable by one Tenant in Common against another. 13 Edw. I. st. 1. WHEREAS two or more do hold wood turf-land or fishing or other such things in common, wherein none knoweth his several, and some of them do waste against the minds of the other, an action may lic by a writ of waste; and when it is come unto judgment, the defen'dant shall choose either to take his part in a place certain by the Sheriff, and by the view oath and assignment of his neighbours sworn and tried 'for the same intent, or else he shall grant to take nothing from henceforth in the same wood turf land and such other but as his partners 'will take. And if he do choose to take his part in a place certain, the part wasted shall be assigned for his part as it was before he committed 'the waste. And there is such a writ in this case, that is to say,' Cum A. et B. tenent boscum pro indiviso, B. fecit vastum, &c. * Partition is often enforced by suit in equity, and such was for a considerable time the more usual course, but the proceeding by writ of partition is now very frequent, and is attended with the advantage of operating upon the estate itself, whereas a court of equity can only direct conveyances. In Parker v. Gerard, Ambl. 236---Nevis 2. Levene, cited ibid, it was held, that the partition must be at the equal expence of the parties, however unequal their shares, and although one party offered to relinquish his share rather than incur the expence--but this opinion has not been followed. See Calmady v. Calmady, 2 Vesey, jun. 568.---See also a full discussion of the subject in a very complicated case, Agar v. Fairfax, 17 Vesey, 533. In Barry v. Nash, I V. & B. 351, it is laid down that upon a bill for partition there are no costs to the hearing, and that the costs of the partition and conveyances are to be borne in proportion to the interests. It might be a considerable improvement of the law to authorize courts 31 H. VIII. c. 1. Godbolt 84, pl. 97. Keilw. 208, b. 211, b. of equity to effect partitions which should be binding upon the legal estates of infants and absent persons, and to award the sale of interests not conveniently susceptible of division. The Irish Statute, 9 W. III. c. 12, contains provisions nearly similar to those of the English Statute, 8 & 9 W. c. 31. with the addition of some useful provisions respecting the meers and fences of the lands allotted in partition. The Irish Statute, 8 Geo. I. c. 5, obliges proprietors and tenants of neighbouring lands to make fences between their several holdings, and the statute 5 Geo. II. c. 9, Ir. contains provisions for the partition of bogs.---See 1 Gabbett, 477 to 487. As to partition between parceners, &c. of Advowsons to present by turns, see statute 7 Anne, c. 18, ante Part I. Class II. No. 17. See also 4 Anne, c. 16, (ante Class I. No. 23.) section 27, as to actions of account by one tenant in common against another. [No. II. ] 31 Henry VIII. c. 1.-For Joint-Tenants and Tenants in Common. FORASMUCH as by the common laws of this realm divers of the King's subjects being seised of manors lands tenements and heredi'taments as joint-tenants, or as tenants in common with other of any 'estate of inheritance in their own rights, or in the right of their wives, by purchase descent or otherwise, and every of them so being jointtenants or tenants in common, have like right title interest and pos'session in the same manors lands tenements and hereditaments for No. II. 31 H. VIII. c. 1. '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 either 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 extirpated 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 Vin. Abr. V. ' tenements and hereditaments jointly or in common with them, and 14, 740 to 539. they have been always without assured remedy for the same.' II. Be it therefore enacted by the King our most dread Sovereign Joint-Tenants Lord, and by the assent of the Lords Spiritual and Temporal and by the and Tenants in Commons in this present Parliament assembled, That all joint-tenants common are and tenants in common that now be or hereafter shall be of any estate Compellable to or estates of inheritance in their own rights, or in the right of their make partition wives, of any manors lands tenements or hereditanients within this realm by Writs. of England Wales or the marches of the same, shall and may be coacted Extended to Joint-Tenants, and compelled by virtue of this present Act to make partition between them of all such manors lands tenements and hereditaments, as they &c. for life or now hold or hereafter shall hold as joint-tenants or tenants in common 32 H. 8. c. 32. years by by writ De participatione facienda, in that case to be devised in the King Co. pl. f. 410. our Sovereign Lord's Court of Chancery, in like manner and form as co- Raymond, 249. parceners by the common laws of this realm have been and are com- Dyer, 128, pellable to do, and the same writ to be pursued at the common law. 450, b. Bro. 2 Bulst. 114. Partit. 38, 42. Cro. El. 759. Cro. Car. 44. III. Provided alway and be it enacted, That every of the said joint- Every of the tenants or tenants in common and their heirs, after such partition made, Joint-Tenants shall and may have aid of the other of their heirs to the intent to dereign and Tenants in the warranty paramount, and to recover for the rate as is used between Common shall coparceners after partition made by the order of the common law; any thing in this Act contained to the contrary notwithstanding. [ No. III. ] 32 Henry VIII. c. 32.-Joint-Tenants for Term of Life or Years.* have aid of the 6 Co. 12. FORASMUCH as in the Parliament begun at Westminster the twenty- 32 Hen. VIII. eighth day of April, and there continued till the twenty-eighth day c. 32. of June, the thirty-first year of the King's most noble and victorious 31 Hen. VIII. reign that now is, it was amongst other things there enacted and es- c. 1. tablished, That all joint-tenants and tenants in common that then Joint-Tenants, were or hereafter should be of any estate or estates of inheritance in and Tenants in 'their own rights or in the right of their wives of any manors lands Common for ' tenements or hereditaments within this realm of England Wales or lives or years, 'marches of the same, shall and may be coacted and compelled by virtue shall make of the said Act to make partition between them of all such manors partition. 'lands tenements and hereditaments as they then held or hereafter 'should hold as joint-tenants or tenants in common, as more at large appeareth by the said statute: And forasmuch as the said statute doth not extend to joint-tenants and tenants in common for term of life or years, neither to joint-tenants or tenants in common where one or See Barry v. Nash, 1 V. & B. as to suits in equity for partition by lessees for years, in which (intalia) it was held, that no objection can be made to such partition from the minuteness of the interest, the inconvenience difficulty or reluctance of the other tenants in common. 8 & 9 W. III. c..31. 31 H. 8, c. 1. 32 H. 8, c. 32. Vin V. 14, 470 to 539. on Writ of Partition, * some of them have but a particular estate for term of life or years, ' and the other have estate or estates of inheritance of and in any manors 'lands tenements and hereditaments: Be it therefore enacted by the King our Sovereign Lord, and by the assent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled, and by the authority of the same, That all joint-tenants and tenants in common, and every of them, which now hold or hereafter shall hold jointly or in common for term of life year or years, or joint-tenants or tenants in common, where one or some of them have or shall have estate or estates for term of life or years, with the other that have or shall have estate or estates of inheritance or freehold in any manors lands tenements or hereditaments, shall and may be compellable from henceforth by writ of partition to be pursued out of the King's Court of Chancery upon his or their case or cases, to make severance and partition of all such manors lands tenements and hereditaments which they hold jointly or in common for term of life or lives year or years, where one or some of them hold jointly or in common for term of life or years with other, or that have an estate or estates of inheritance of freehold. II. Provided alway and be it enacted, that no such partition or severance hereafter to be made by force of this Act be nor shall be prejudicial or hurtful to any person or persons their heirs or successors, other than such which be parties unto the said partition their executors or assigns. [ No. IV. ] 8 & 9 William III. c. 31.-An Act for the easier obtaining Partitions of Lands in Coparcenary Joint-Tenancy and Tenancy in Common. WHEREAS the proceedings upon writs of partition between corparceners by the common law or custom, joint-tenants and tenants in common, are found by experience to be tedious chargeable and oftentimes ineffectual, by reason of the difficulty of discovering the persons and estates of the tenants of the manors messuages lands tenements ' and hereditaments to be divided, and the defective or dilatory executing and returning of the process of summons attachment and distress, and other impediments in making and establishing of partitions, by reason of which divers persons having undivided parts or purparts are greatly oppressed and prejudiced, and the premises are frequently wasted and destroyed, or lie uncultivated and unmanured, so that the profits of the same are totally or in a great measure lost:' For remedy whereof, be it enacted by the King's most Excellent Majesty, by and with the advice After process of and consent of the Lords Spiritual and Temporal and Commons in this Pone or Attach- present Parliament assembled, and by the authority of the same, That ment returned from and after the first day of May one thousand six hundred ninetyseven, after process of pone or attachment returned upon a writ of partition, affidavit being made by any credible person of due notice given of the said writ of partition to the tenant or tenants to the action, and a copy thereof left with the occupier or tenant or tenants, or if they cannot be found, to the wife son or daughter (being of the age of one and twenty years or upwards) of the tenant or tenants, or to the tenant in actual possession by virtue of any estate of freehold, or for term of years, or uncertain interest, or at will, of the manors lands tenements or hereditaments whereof the partition is demanded, (unless the said tenant in actual possession be demandant in the action,) at least forty days before the day of return of the said pone or attachment, if the tenant or tenants to such writ, or any of them, or the true tenant to the messuages lands tenements and hereditaments as aforesaid, shall not in such case, within fifteen days after return of such writ of pone or attachment, cause an appearance to be entered in such court where such writ of pone or attachment shall be returnable, (1) then in default of such appearance, the demandant having (1) This statute applies only to cases where the tenant does not appear.-Dyer v. Bullock, 1 B. & P. 344. if the Tenant do not enter an appearance within 15 days, Court may pro ceed to examine the Demand. ant's title, &c. No. IV. 8&9 William III. entered his declaration, the court may proceed to examine the demandant's title and quantity of his part and purpart, and accordingly as they shall find his right part and purpart to be, they shall for so much give judgment by default, and award a writ to make partition, whereby such proportion part and purpart may be set out severally; which writ being executed after eight days notice given to the occupier, or tenant or tenants of the premises, and returned, and thereupon final judgment entered, (2) the same shall be good, and conclude all persons whatsoever after notice as aforesaid, whatever right or title they have, or may at any time claim to have in any of the manors messuages lands tenements and hereditaments mentioned in the said judgment and writ of partition, although all persons concerned are not named in any of the proceedings, nor the title of the tenants truly set forth. c. 31. II. Provided always, That if such tenant or person concerned, or either If Tenant or of them against whom or their right or title such judgment by default other shall, in is given, shall within the space of one year after the first judgment en- one year after tered, or in case of infancy coverture Non suna Memoria or absence out of judgment enthe kingdom, within one year after his her or their return, or the deter- tred, &c. shew mination of such inability, apply themselves to the court by motion a good matter where such judgment is entered, and shew a good and probable matter in bar of such in bar of such partition, or that the demandant hath not title to so much partition, &c. the Court may as he hath recovered, then in such case the court may suspend or set n. aside such judgment, and admit the tenant and tenants to appear and set aside such plead, and the cause shall proceed according to due course of law as if no such judgment had been given: And if the court upon hearing thereof, shall adjudge for the first demandant, then the said first judgment shall stand confirmed, and be good against all persons whatsoever, except such other persons as shall be absent or disabled as aforesaid; and the person or persons so appealing shall be awarded thereupon to pay costs, or if within such time or times aforesaid the tenants or persons concerned, admitting the demandant's title parts and purparts, shall shew to the court an inequality in the partition, the court may award a new partition to be made in presence of all parties concerned (if they will appear,) notwithstanding the return and filing upon record the former, which said second partition returned and filed shall be good and firm for ever against all persons whatsoever, except as before excepted. III. And be it further enacted by the authority aforesaid, That no plea No plea in in abatement shall be admitted or received in any suit for partition, nor abatement to shall the same be abated by reason of the death of any tenant. be admitted. IV. And be it further enacted by the authority aforesaid, That when Under Sheriff, the high sheriff, by reason of distance infirmity or any other hindrance, in presence of cannot conveniently be present at the execution of any judgment in par- two Justices, tition, in such case the under sheriff, in presence of two justices of the may act for peace of the county where the lands tenements or hereditaments to be High Sheriff. divided do lie, shall and may proceed to execution of any writ of partition, by inquisition in due form of law, as if the high sheriff were then personally present; and the high sheriff thereupon shall, and is hereby enabled and required to make the same return as if he were personally present at such execution: And in case such partition be made returned Tenants before and filed, he or they that were tenant or tenants of any of the said mes- the division to suages lands tenements and hereditaments, or any part or purpart thereof, be Tenants before they were divided, shall be tenant or tenants for such part set out under the same severally to the respective landlords or owners thereof, by and under the conditions, &c. same conditions rents covenants and reservations, where they are or shall be so divided, and the landlords and owners of the several parts and purparts so divided and allotted as aforesaid shall warrant and make good unto the respective tenants the said several parts severally, after such partition, as they are or were bound to do by any copy leases or grants of their respective parts before any partition made; and in case any demandant be tenant in actual possession to the tenant to the action for his part and proportion, or any part thereof, in the messuages lands tene (2) See a proceeding under this provision, Halton v. Earl of Thanet, 2 Bl. Rep. 1134, 1159. No. IV. 8 & 9 William III. c. 31. Sheriffs, Under Sheriffs, &c. to give due attend ance for exe euting Writs of Partition, &c. This Act to continue for 7 years. ments and hereditaments, to be divided by virtue of a writ of partition as aforesaid, for any term of life lives or years or uncertain interest, the said tenant shall stand and be possessed of the said purparts and proportions for the like term and under the same conditions and covenants when it is set out severally in pursuance of this or any other Act statute or law to that purpose. V. And be it further enacted by the authority aforesaid, That the respective sheriffs their under sheriffs and deputies, and in case of sickness or disability in the high sheriff, all justices of peace within their respective divisions, shall give due attendance to the executing such writ of partition, unless reasonable cause be shewn to the court upon oath, and there allowed of, or otherwise be liable every of them to pay unto the demandant such costs and damages as shall be awarded by the court, not exceeding five pounds, for which the demandant or plaintiff may bring his action in any of his Majesty's courts of record at Westminster, wherein no essoin protection privilege or wager of law shall be allowed, nor any more than one imparlance; and in case the demandant shall not agree to pay unto the sheriffs or under sheriffs, justices and jurors, such fees as they shall respectively demand for their pains and attendance in the execution of the same and returning thereof, then the court shall award what each person shall receive, having respect to the distance of the place from their respective habitations, and the time they must necessarily spend about the same, for which they may severally bring their actions as aforesaid. VI. Provided always, That this Act shall continue for seven years, and from thence to the end of the next session of Parliament, and no longer. [Made perpetual by 3 & 4 Anne, c. 18. sect. 2.] |