174. Voluntary partition.

Joint tenants, tenants in common, and coparceners may make partition by agreement among themselves; this involving merely the transfer to each cotenant by the other cotenants of a certain portion, designated by metes and bounds, of the whole property.

According to the English authorities, and also the decisions. in a number of states, a partition by agreement must, to be valid under the Statute of Frauds, be in writing.148 In perhaps a majority of the states, however, a parol partition is upheld when followed by possession by the various tenants of the portions allotted to them,-a view which is based on different grounds by different courts. valid in the case of a tenancy in common because it involves merely a severance of the possession between the various owners, and not a transfer of title, as this is already severed.144 Sometimes it is stated that a partition will be presumed from the exclusive possession by one tenant of a part of the premises for a considerable length of time.145 Occasionally, the state Statute of Frauds, applying in terms only to a sale of lands, is held not to include a partition.146 And sometimes the theory ap

Thus it is stated that such a partition is

148 Browne, St. Frauds, & 68; Johnson v. Wilson, Willes, 248; Woodbull v. Longstreet, 18 N. J. Law, 414; Duncan v. Sylvester, 16 Me. 390, 6 Gray's Cas. 670; Ballou v. Hale, 47 N. H. 347; Dow v. Jewell, 18 N. H. 340; Gardiner Mfg. Co. v. Heald, 5 Me. 384, 17 Am. Dec. 248; Porter v. Hill, 9 Mass. 34, 6 Am. Dec. 22; Woodhull v. Longstreet, 18 N. J. Law, 405.

144 Jackson v. Bradt, 2 Caines (N. Y.) 169; Wood v. Fleet, 36 N. Y. 501, 93 Am. Dec. 528; City of Natchez v. Vandervelde, 31 Miss. 706; Hauk v. McComas, 98 Ind. 460; Shepard v. Rinks, 78 Ill. 188; Byers v. Byers, 183 Pa. St. 509; 63 Am. St. Rep. 765; Buzzeli v. Gallagher, 28 Wis. 678.

145 Lavalle v. Strobel 89 Ill. 370; Markoe v. Wakeman, 107 Ill. 251; Russell's Heirs v. Marks' Heirs, 3 Metc. (Ky.) 37. And see Gregg ▼. Blackmore, 10 Watts (Pa.) 192.

146 Meacham v. Meacham, 91 Tenn. 532; Moore v. Kerr, 46 Ind. 470. In Texas, the decisions are based on the ground that the statute applies only to a sale of land, and not to the sale of an "interest" in

pears to be that one taking part in such a parol partition is estopped to deny its validity as against one who has received his share and erected improvements thereon.147 A parol partition, followed by the taking of possession of their allotted parts by the various cotenants, may be upheld in a court exercising equitable powers on the ground that this constitutes such part performance as takes the case out of the statute, and authorizes a decree for specific performance.

148

Upon & compulsory partition at common law between coparceners, a warranty was implied in favor of each on the part of the others that the title to the part of the land received by him was good, it not being considered just that one compelled to be a party to a partition should suffer thereby; and the statute of 31 Hen. VIII. c. 1 (A. D. 1539), provided that the same right should accrue to joint tenants and tenants in common in case of compulsory partition.149 In the case of voluntary partition, however, a warranty was not implied, either as between coparceners, joint tenants, or tenants in common, the reason on which such a warranty was based in the case of a compulsory partition being entirely absent.150 Occasionally, how

land, therein differing from the English statute. Stuart v. Baker, 17 Tex. 419; Aycock v. Kimbrough, 71 Tex. 330.

147 Piatt ▼. Hubbell, 5 Ohio, 243; Brown v. Wheeler, 17 Conn. 345, 44 Am. Dec. 550; Bruce v. Osgood, 113 Ind. 360.

148 Ebert v. Wood, 1 Binn. (Pa.) 218, 6 Gray's Cas. 669, 2 Am. Dec. 436; Goodhue v. Barnwell, Rice, Eq. (S. C.) 236; Tomlin v. Hilyard, 43 Ill. 302; Buzzell v. Gallagher, 28 Wis. 678. See Hazen v. Barnett, 50 Mo. 507; Nave v. Smith, 95 Mo. 596, 6 Am. St. Rep. 79.

149 Rawle, Covenants, § 277; Litt. § 241. See Jones v. Bigstaff, 95 Ky. 395, 44 Am. St. Rep. 245; Grigsby v. Peak, 68 Tex. 235, 2 Am. St. Rep. 487.

150 Rawle, Covenants, § 277; Morrice's Case, 6 Coke, 12b, 6 Gray's Cas. 668; Rector v. Waugh, 17 Mo. 13; Beardsley v. Knight, 10 Vt. 185, 33 Am. Dec. 193; Weiser v. Weiser, 5 Watts (Pa.) 279; Rountree v. Den son, 59 Wis. 522.

ever, the courts have implied a warranty upon a voluntary partition.151

175. Compulsory partition.

At common law, a tenancy in common or a joint tenancy could not be partitioned except by the agreement of all the owners, while a tenancy in parcenary could be partitioned on a writ of partition. The right to a writ of partition was, however, extended to joint tenants and tenants in common by 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32 (A. D. 1540), and other statutes regulating the procedure were subsequently passed.152

In the time of Elizabeth, if not earlier, the court of chancery began to take jurisdiction of suits for partition,158 and by a statute passed in 1833 a bill in equity was made the only form of proceeding.154 In this country, the jurisdiction of courts of equity has always been recognized, but in many of the states there are statutory provisions giving concurrent jurisdiction to common-law courts, or to the courts having probate jurisdiction, particularly in the case of partition of land belonging to a decedent's estate.155

151 Huntley v. Cline, 93 N. C. 458; Venable v. Beauchamp, 3 Dana (Ky.) 321, 28 Am. Dec. 74; Morris v. Harris, 9 Gill (Md.) 26

In Pennsylvania, the courts have acted under the mistaken impression that there was, at common law, an implied warranty in the case of a voluntary partition between parceners, though not as between other cotenants, and have accordingly implied a warranty in the analogous case of tenants in common claiming by descent from a single ancestor. Patterson v. Lanning, 10 Watts (Pa.) 135, 36 Am. Dec. 154; Feather v. Strohoecker, 3 Pen. & W. (Pa.) 505, 24 Am. Dec. 342. See Rawle, Covenants, § 278, and notes.

152 Litt. §§ 247, 290, 318; Co. Litt, 169a, 187a; 2 Bl. Comm. 185, 189, 194. 158 Co. Litt. 169a, Hargrave's note, 23; 2 Cruise, Dig. tit. 18, c. 2, § 42 et seq; 1 Spence, Equitable Jurisdiction, 651; Freeman, Cotenancy, § 423.

154 St. 3 & 4 Wm. IV. c. 27, § 36.

186 Freeman, Cotenancy, § 428; 2 Dembitz, Land Titles, 1168, § 155; 3

In England, no person can demand a partition unless he has an interest in possession, as distinguished from one in remainder or reversion, and this rule is generally in force in this country.156 Nor, unless the statute contains a provision to the contrary, can partition be obtained as against a reversioner or remainderman by one who is the sole tenant in possession, the purpose of this proceeding being to distribute the possession between persons concurrently entitled thereto.157

A cotenant, in order to obtain partition, must, according to the view more generally prevailing, have actual or constructive possession, with a valid legal title, and the court will not undertake, in the suit for partition, to determine conflicting claims.158 In a number of states, however, the statutes either expressly, or by the construction given them by the courts, authorize an adjudication, in the partition proceeding, of questions of title which may arise.159

Pomeroy, Eq. Jur. § 1378 et seq. For a summary of the statutes, see Freeman, Cotenancy, § 461a, note; 2 Dembitz, Land Titles, 1170, § 155. 156 Freeman, Cotenancy, §§ 440, 446; 3 Pomeroy, Eq. Jur. § 1387, note; Evans v. Bagshaw, L. R. 8 Eq. 469, 5 Ch. App. 340; Wilkinson v. Stuart, 74 Ala. 198; Nichols v. Nichols, 28 Vt. 230, 67 Am. Dec. 699; Wood v. Sugg, 91 N. C. 93, 49 Am. Rep. 639; Sullivan v. Sullivan, 66 N. Y. 37; Cannon v. Lomax, 29 S. C. 369, 13 Am. St. Rep. 739; Savage v. Savage, 19 Or. 112, 20 Am. St. Rep. 795. Contra, under particular statutes, Scoville v. Hilliard, 48 Ill. 453; Smith v. Gaines, 38 N. J. Eq. 65; Cook v. Webb, 19 Minn. 170; Deshong v. Deshong, 186 Pa. St. 227, 65 Am. St. Rep. 855; Atkinson v. Brady, 114 Mo. 200, 35 Am. St. Rep. 744.

157 Seiders v. Giles, 141 Pa. St. 93; Metcalfe v. Miller, 96 Mich. 459, 35 Am. St. Rep. 617; Hodgkinson's Petition, 12 Pick. (Mass.) 374; Jameson v. Hayward, 106 Cal. 682, 46 Am. St. Rep. 268. See cases cited in note to Aydlett v. Pendleton, 32 Am. St. Rep. 778.

158 Freeman, Cotenancy, § 447; Pomeroy, Eq. Jur. § 1388; Pierce v. Rollins, 83 Me. 172; Fenton v. Steere, 76 Mich. 405; Seymour v. Rick etts, 21 Neb. 240; Haeussler v. Missouri Iron Co., 110 Mo. 188, 33 Am. St. Rep. 431; Whitten v. Whitten, 36 N. H. 326; Brock v. Eastman, 28 Vt. 658.

159 Freeman, Cotenancy, § 450; 2 Dembitz, Land Titles, § 155. See Weston v. Stoddard, 137 N. Y. 119; Holloway v. Holloway, 97 Mo. 628, 10 Am. St. Rep. 339; Gore v. Dickinson, 98 Ala. 363; Marshall v. Cre

In proceedings for partition, the court first determines the share to which each cotenant is entitled, and then the actual partition of the land by metes and bounds is made by commissioners or referees or a sheriff's jury, and their report, if satisfactory, is ratified by the court, and a final judgment or decree in accordance therewith is entered.160 Such a decree, if rendered by a court of equity, operating, like all decrees in equity, in personam and not in rem,181 does not, apart from statute, vest the title to his allotted share in each co-owner, and the co-owners are in such a case required by the court to make conveyances to each other. By statute, however, in most states, the decree, or a conveyance in accordance therewith by the commissioners or referees, is sufficient to pass the title in severalty to the various parties.162

If the property cannot be equally divided, a court of equity may equalize the shares by a decree that one taking the larger share shall pay a certain sum, called "owelty" (equality) of partition, to one receiving a less share, as a condition of carrying out the partition.163

By statute in most, if not all, of the states, the court may order a sale of the property if it is impossible to divide it equally, or to do so without prejudice to the interests of some of the parties. Apart from statute, the court has no power to order such a sale unless all the parties in interest agree thereto, and, even under the statutes, a sale will not be ordered unless the state of facts named in the statute clearly appear.164

hore, 13 Metc. (Mass.) 464; Street v. Benner, 20 Fla. 700; Pillow Southwest Virginia Imp. Co., 92 Va. 144, 53 Am. St. Rep. 804; Gage v. Bissell, 119 Ill. 298.

100 Freeman, Cotenancy, c. 26.

161 Story, Eq. Jur. § 652.

162 Freeman, Cotenancy, § 527; 2 Dembitz, Land Titles, 1173.

168 Freeman, Cotenancy, § 507; 3 Pomeroy, Eq. Jur. § 1389; Cox v. McMullin, 14 Grat. (Va.) 82; Cheatham v. Crews, 88 N. C. 38; Jameson . Rixey, 94 Va. 342, 64 Am. St. Rep. 726.

164 Freeman, Cotenancy, § 537 et seq.; 3 Pomeroy, Eq. Jur. § 1390; 2 Dembitz, Land Titles, §§ 153, 1156.