order that it should be reasonable, equal, and mu-. tually advantageous, than was ever claimed by the courts of law upon the writ of partition. With their usual rigor of construction, especially where the freehold was concerned, the courts of law upon the writ of partition were accustomed to hold that they were restrained to the allotment in kind of their respective shares of the property to the several parties, giving each his due proportion of every tract, of every house, and of every species of land, arable, pasture, meadow, wood, &c. But the courts of equity repudiated these affected scruples, and whilst assigning to each co-tenant his proper proportion, insisted that it should be done in such a manner as to lessen as little as possible the value of the parts and of the whole. "If there were three houses of different value to be divided among three, it would not be right," says Lord Chancellor Parker, "to divide every house, for that would be to spoil every house; but some recompense is to be made, either by a sum of money, or rent for owelty of partition, to those that have the houses of less value. By the same reason, every house on the estate must be divided which would depreciate the estate, and occasion perpetual contention." (Clarendon v. Hornby, 1 P. Wms. 447; 1 Stor. Eq. § 654 & seq; 2 Rob. Pr. (1st Ed.) 12; 1 Th. Co. Lit. 699–700.)

But notwithstanding the liberal doctrine propounded by Lord Chancellor Parker in Clarendon v Hornby, it was understood, and indeed affirmed by himself in that case, that each tenant must have some substantial part of the premises, so that, if there were but one house or mill to be divided, and no other lands to make up the cotenant's share, a division in kind was unavoidable. The English books afford a number of cases where this doctrine was applied disastrously to the interests of all parties, but in magnanimous vindication of their rights. The most pitiable of these, in its results, is Turner v. Morgan, 8 Ves. 145. The bill was filed for a partition by a person entitled to two-thirds of a house at Portsmouth, against his co-tenant entitled to one-third. The Lord Chancellor (Eldon) forbore a decree for a time, as "an act of mercy to the parties," in the hope that they would compromise their differences, but neither yielding, he was constrained to issue a

commission, which was executed by allotting to the plaintiff the whole stack of chimneys, all the fire-places, the only stair-case in the house, and all the conveniences in the yard. But the Chancellor said he knew not how to make a better partition, and that the only escape for the parties was to agree to buy and sell. See Parker v. Gerard, 1 Amb. 236; Warner v. Baynes, 2 Amb. 589.

In Virginia, by statute (V. C. 1873, c. 120, § 3, 2), sufficient discretion is now conferred on the court to avoid such embarrassments. When partition cannot conveniently be made otherwise,1st. The entire subject may be allotted to any party who will accept it, and pay therefor to the other parties such sums of money as their interest therein may entitle them to;

2dly. The entire subject may be sold and its proceeds divided;

3dly. Part may be allotted, and the residue sold; 4thly. Any two or more of the parties, if they so elect, may have their shares laid off together, when partition can be conveniently made that way.

The sale of the whole or a part may be made, notwithstanding any of those entitled may be an infant, insane person, or married woman. But if the dividend of any party will, in the opinion of the court, exceed the value of $300, the case, if pending in a county court, before any order of sale therein, shall by said court be removed to the circuit court of the county. And when the dividend of a party exceeds the value of $300, if the party be an infant or insane person, the court making an order of sale shall require security for the faithful application of the proceeds of his interest, in like manner as if the sale were made in a suit brought (under V. C. 1873, c. 124, § 2, & seq.) specially to sell such lands and invest the proceeds. (V. C. 1873, c. 120, § 3, 2; Frazier v. Frazier, 21 Grat. 500; Zirkle v. McCue, Id. 517.)

Upon a bill for partition of lands, the share of each co-tenant should be assigned to him in severalty, if it can be done with a due regard to the interests of all concerned. And if, from the condition of the subject or of the parties, it is deemed proper to pursue a different course, the facts supposed to justify a departure from the rule ought (at least where infants are concerned), to be disclosed by the report of the commissioners ap

pointed to make the division, or be otherwise made to appear, in order to enable the court to judge whether or not the interests of the parties will be injuriously affected by the action taken. (Custis v. Snead, 12 Grat. 262, & seq.; Cox v. McMullin, 14 Grat. 91; Howery v. Helm, 21 Grat. 8; 1 Th. Co. Lit. 699, 704.) Where such partition in severalty is impracticable, or cannot be made without impairing the portions of some or all of the parties, then nothing remains but to resort to one or other of the devices above stated, as, for example, by dividing the property into shares of unequal value, and correcting the inequality by charging money on the more valuable in favor of the less valuable portion (Cox v. McMullin, 14 Grat. 82), or by a sale of the whole, and a distribution of the proceeds. (Howery v. Helms, 20 Grat. 1.) And whether the partition shall be made in kind, or in some one of the special modes allowed by the statute, is a question for the court, whose decision is not to be controverted in a collateral suit, except for fraud or surprise. (Wilson & al v. Smith, 20 Grat. 502.)

When the division has been made into the required number of shares, the proper, or rather the usual course, is to determine by lot which portion shall belong to the parties severally; but if it will be to their mutual benefit, or to the benefit of one without injuring another, the commissioners may, in their discretion, subject to the correction of the court, assign the respective shares to the co-tenants. specifically, instead of resorting to the lot. (1 Th. Co. Lit. 695; Cox v. McMullin, 14 Grat. 91-'2.)

The same statute, touching partitions, also confirms a convenient practice, which had long been established in Virginia, of making division in equity of goods and chattels which cannot be conveniently distributed in kind amongst those entitled, or, indeed, even if they can be so distributed, there being no provision whatever at law for the compulsory partition of chattels. (V. C. 1873, c. 120, 6; Smith & als v Smith, 4 Rand. 95, 102; Fitzhugh & ux v. Foote & al, 3 Call. 17, 18.) 4. Costs of Partition.

The costs of the proceeding are in general to be paid by the parties in proportion to the value of their respective interests, it being a rule that no costs shall be given until the commission, nor for

any proceedings subsequent to the confirmation of the commissioner's report. (Agar v. Fairfax, 17 Ves. 533; Calmady v. Calmady, 2 Ves. Jun'r, 568; Whaley v. Dawson, 4 Sch. & Lefr. 371.) 5m. Final Decree in Partition.

Upon the return of the commissioner's report, showing how the land has been allotted to the parties in severalty, if there is no successful objection made thereto, a final decree is made confirming the report; or if a sale be found necessary ordering it to be made; in which latter case the decree is not entirely final, the cause being reserved in order that the court may superintend the sale. Supposing an allotment of shares to the several tenants to have been made and confirmed, the decree directs mutual conveyances to be executed by the parties to each other, of the several lots assigned to them respectively. And herein consists an important diversity between this proceeding in equity, and the writ of partition at law. The latter operates by the judgment of the court of law, and the delivery up of possession in pursuance thereof, which concludes all the parties to it. Partition in equity transfers only an equitable right, in itself, and secures a legal title by conveyances to be executed by the parties mutually. Hence, if the parties, or any of them, be incompetent to execute the conveyances, the partition, independently of statute, cannot effectually be had until the disabilities are removed, and the conveyances executed. This is helped, however, in Virginia by statute, (V. C. 1873, c. 174, § 7), which provides that a court of equity in a suit in which it is proper to decree the execution of any deed or writing, may appoint a commissioner to execute the same; and the execution thereof shall be as valid to pass, release, or extinguish the right, title, and interest of the party on whose behalf it is executed, as if such party had been competent, and had executed it. In case of infancy of any of the parties, it was formerly indispensable that the decree should reserve leave to the infant to show cause against the decree within six months after coming of age, the oinission of which was error sufficient to reverse the decree, (Jackson's heirs v. Turner, 5 Leigh, 119; Tennent's heirs v. Patton, 6 Do. 196). At present this is more conveniently provided for by statute, (V. C. 1873, c. 174, § 10), which dispenses with

such a clause, and gives the same effect to the decree as if it had been inserted. The statute above cited (V. C. 1873, c. 174, § 7) meets fully and removes the embarrassment which formerly attended decrees for partition in cases of contingent remainders, or executory limitations, not barrable or extinguishable, limited to persons not in existence, when the conveyance, and therefore the consummation of the decree, was necessarily deferred until the party entitled came into being, or the contingency was determined; and then a supplemental bill was required to carry the original decree into execution. (1 Stor. Eq. § 651, 652; Whaley v. Dawson, 2 Sch. & Lefr. 471-'2; Sands' suit in Eq. 446 & seq.)

2. The Advantage, or Disadvantage of dissolving the Join

ture.

In general it is advantageous for joint-tenants to dissolve the jointure, where the right of survivorship still subsists, as in Virginia, it will be remembered, it does not, at least for the party's own benefit, unless expressly limited to the survivor; for since by the dissolution the jus accrescendi is taken away, each tenant may transmit his own part to his own heirs. Sometimes, however, that very privilege of survivorship confers a marked advantage, and then, of course, the continuance of the joint-tenancy is desirable. Thus, if A and B be joint-tenants for life, during the jointure each has an estate in the whole, for the life of his companion, and his own life; whereas, if they make partition, each has an estate in his own share, for his own life merely. (2 Bl. Com. 187; V. C. c. 116, § 18, 19.) 24. Tenancy in Common.

A tenancy in common is where two or more hold the same land, with interests accruing under different titles; or accruing under the same title, but at different periods; or conferred by words of limitation importing that the grantees are to take in distinct shares. (1 Steph. Com. 323.)

In this tenancy there is not necessarily any unity of title; for one may hold by purchase from A, and another by purchase from B; nor any unity of time; for one's estate may have vested fifty years ago, and that of the other but yesterday; nor any unity of estate or interest; for one tenant in common may be entitled in fee-simple, and the other for life or for years. Neither is there any entirety of interest which so remarkably characterizes joint-tenancy; for each is seised or possessed of a distinct though undivided share; from which also it follows that there is no survivorship, that is, by the effect of the tenancy itself, for by express