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PARTITION

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Originally appearing in Volume V20, Page 872 of the 1911 Encyclopedia Britannica.
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PARTITION , in See also:

law, the See also:division between several persons of See also:land or goods belonging to them as co-proprietors. It was a See also:maxim of See also:Roman law, followed in See also:modern systems, that in communione vel societate nemo potest invitus detineri. Partition was either voluntary or was obtained by the actio communi dividendo. In See also:English law the See also:term partition applies only to the division of lands, tenements and hereditaments, or of chattels real between coparceners, See also:joint tenants or tenants in See also:common. It is to be noticed that not all hereditaments are capable of partition. There can be no partition of See also:homage, fealty, or common of turbary, or of an See also:inheritance of dignity, such as a See also:peerage. Partition is either voluntary or compulsory. Voluntary partition is effected by mutual conveyances, and can only be made where all parties are sui See also:juris. Since the Real See also:Property See also:Act 1845, § 3, it must be made by See also:deed, except in the See also:case of copyholds. Compulsory partition is effected by private act of See also:parliament, by judicial See also:process, or through the See also:inclosure commissioners. At common law none but coparceners were entitled to partition against the will of the See also:rest of the proprietors, but the Acts of 31 See also:Henry VIII. c. 1 and 32 Henry VIII. c.

32 gave a compulsory process to joint tenants and tenants in common of taces) . . .2 B.C.–A.D. 5 See also:

Mithradates V. . . c. 129-147 See also:Orodes II A.D. 5-7 See also:Vologaeses III. . . 147-191 freeholds, whether in See also:possession or in reversion, by means of the See also:writ of partition. In the reign of See also:Elizabeth the See also:court of See also:chancery began to assume See also:jurisdiction in partition, and the writ of partition, after gradually becoming obsolete, was finally abolished by the Real Property See also:Limitation Act 1833. The court of chancery could not See also:decree partition of copyholds until the passing of the Copyholds Act 1841. This act was repealed by the Copyholds Act 1894, which empowers the See also:alienation of See also:ancient tenements with the See also:licence of the See also:lord. By the Judicature Act 1873, § 34, partition is one of the matters specially assigned to the chancery division.

An See also:

order for partition is a See also: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 See also:request of a party interested, See also:direct a See also:sale instead of a partition, if a sale would be more beneficial than a partition. By § 12 a See also:county court has jurisdiction in partition where the property does not exceed Soo in value. Under the See also:powers of the Inclosure Act 1845, and the acts amending it, the inclosure commissioners have See also: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 See also: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 See also:Scotland division of common property is effected either extra-judicially, or by See also:action of See also:declarator and division or division and sale in the court of session, or (to a limited extent) in the See also: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 See also:king or royal burghs, divisible, on the application of any having See also: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 £5o by the See also:year, or £See also:i000 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 See also:

conveyance by the joint proprietors to the several participants (See also:Conveyancing [Scotland] Act 1874, § 35). In the See also:United States, " it is presumed," says See also:Chancellor See also:Kent, (4 See also: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 See also:majority of the states, partition may be made by a See also:summary method of See also:petition to the courts of common law. In the other states the courts of See also:equity have exclusive jurisdiction. As between heirs and devisees the See also:pro-bate courts may in some states See also:award partition. The various See also:state See also:laws with regard to partition will be found in See also:Washburn, Real Property, bk. i. ch. xiii., § 7.

End of Article: PARTITION

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