1911 Encyclopædia Britannica/Partition

PARTITION, in law, the division between several persons of land or goods belonging to them as co-proprietors. It was a maxim of Roman law, followed in modern systems, that in communione vel societate nemo potest invitus detineri. Partition was either voluntary or was obtained by the actio communi dividendo. In English law the term partition applies only to the division of lands, tenements and hereditaments, or of chattels real between coparceners, joint tenants or tenants in common. It is to be noticed that not all hereditaments are capable of partition. There can be no partition of homage, fealty, or common of turbary, or of an inheritance of dignity, such as a peerage. Partition is either voluntary or compulsory. Voluntary partition is effected by mutual conveyances, and can only be made where all parties are sui juris. Since the Real Property Act 1845, § 3, it must be made by deed, except in the case of copyholds. Compulsory partition is effected by private act of parliament, by judicial process, or through the inclosure commissioners. At common law none but coparceners were entitled to partition against the will of the rest of the proprietors, but the Acts of 31 Henry VIII. c. 1 and 32 Henry VIII. c. 32 gave a compulsory process to joint tenants and tenants in common of freeholds, whether in possession or in reversion, by means of the writ of partition. In the reign of Elizabeth the court of chancery began to assume jurisdiction in partition, and the writ of partition, after gradually becoming obsolete, was finally abolished by the Real Property Limitation Act 1833. The court of chancery could not decree partition of copyholds until the passing of the Copyholds Act 1841. This act was repealed by the Copyholds Act 1894, which empowers the alienation of ancient tenements with the licence of the lord. By the Judicature Act 1873, § 34, partition is one of the matters specially assigned to the chancery division. An order for partition is a matter of right, subject to the discretion vested in the court by the Partition Act 1868 (amended by the Partition Act 1876). By § 3 of the act of 1868 the court may, on the request of a party interested, direct a sale instead of a partition, if a sale would be more beneficial than a partition. By § 12 a county court has jurisdiction in partition where the property does not exceed £500 in value. Under the powers of the Inclosure Act 1845, and the acts amending it, the inclosure commissioners have power of enforcing compulsory partition among the joint owners of any inclosed lands. An order of the inclosure commissioners or a private act vests the legal estate, as did also the old writ of partition. But an order of the chancery division only declares the rights, and requires to be perfected by mutual conveyances so as to pass the legal estate. Where, however, all the parties are not sui juris, the court may make a vesting order under the powers of the Trustee Act 1850, § 30.

Partition is not a technical term of Scots law. In Scotland division of common property is effected either extra-judicially, or by action of declarator and division or division and sale in the court of session, or (to a limited extent) in the sheriff courts. Rights of common are not divisible in English law without an act of parliament or a decree of the inclosure commissioners, but in Scotland the act of 1695, c. 38, made all commonties, except those belonging to the king or royal burghs, divisible, on the application of any having interest, by action in the court of session. By the Sheriff Courts (Scotland) Act 1877, § 8, the action for division of common property or commonty is competent in the sheriff court, when the subject in dispute does not exceed in value £50 by the year, or £1000 value. Runrig lands, except when belonging to corporations, were made divisible by the act of 1695, c. 23. A decree of division of commonty, common property, or runrig lands has the effect of a conveyance by the joint proprietors to the several participants (Conveyancing [Scotland] Act 1874, § 35).

In the United States, “it is presumed,” says Chancellor Kent, (4 Comm., lect. lxiv.), “that the English statutes of 31 & 32 Henry VIII. have been generally re-enacted and adopted, and probably with increased facilities for partition.” In a large majority of the states, partition may be made by a summary method of petition to the courts of common law. In the other states the courts of equity have exclusive jurisdiction. As between heirs and devisees the probate courts may in some states award partition. The various state laws with regard to partition will be found in Washburn, Real Property, bk. i. ch. xiii., § 7.