PARTITION (Lat. partitio, division, from partiri, to divide, from pars, part). A division of lands. tenements, and hereditaments, or of goods and chattels, by or for the benefit of per sons who have an undivided common interest in them so that each becomes the sole owner of one part or portion of the property. Compulsory partition was first allowed in the early common law as to co-parceners, who became joint owners of real estate by inheritance, on the theory that, as they became joint owners by operation of law, and without their consent, t hey should be entitled to have it divided it their ideas as to management were not in accord. But as estates held in joint tenancy and tenauey in common were ordinarily created by the volun tary act of the parties, or with their consent. the old rule was that they could only be dis solved in the same way. In the course of time, however, the common-law rules were changed by statute, and since the reign of Henry VIII. all estates held in common have been subject to par tition. The English law has continued to be the common law of the United States.
Originally, compulsory partition was obtained by means of a writ of partition, issued from a court of law, but subsequently the courts of chancery assumed jurisdiction; and in most States the action is now considered more in the nature of an equitable action because of the char acter of the relief obtained. Compulsory par tition is now confined almost exclusively to real estate, as personal property, when left by a decedent. is sold and the proceeds distributed by the executors or administrators; and it is seldom held in common except by virtue of a partnership relation, in case of the dissolution of which the sale of the property. or an account ing, is resorted to as the most convenient method of adjusting the rights of the partners.
Where the common owners of property agree upon a partition, it is usually effected by ex changing deeds, each conveying and releasing to the other all his right, title, and interest in and to the portion which the latter is to receive. It is held in some States that a part)] partition fol lowed by actual possession of the respective por tions of the parties is valid, on the ground that a conveyance is not necessary under the statute of frauds, as each party owned every portion in common with the others, but this is a most doubtful and unsatisfactory method.
Where the parties do not all agree that there should be a partition. and upon the shares to which each should be entitled. one or more of them may commence an action for partition. All parties having any possible interest in the property who do not join as plaintiffs should be made parties defendant. In some cases where the owners in common are all friendly. it is agreed that partition shall be made by the court. and one or more will consent to be made parties defendant. in order to give the proceeding the form of a litigated action. A few States permit all the parties in interest to join in an cx parte application to the court for partition. that is. to apply by a petition in the name of all. no one being made party defendant. In all `friendly' suits the costs are apportioned among the parties according to their respective inter ests.
The respective proportions or interests of the various parties are first determined, and the court then decides upon the division which will be equitable and just to all. The courts generally favor a division of the property itself where that is possible from its nature and situation. In some cases the courts may make a division of real estate among the interested parties, and order those who receive pareels of greater value than the others to make a certain compensation to the latter. This is sometimes called 'oM?dtv (equality ) of partition.' In the actual and apportionment of land-. value. of the re spective portions are considered as well a. area. and where the action is brought in a court of equitable jurisdiction each party will Is) al lotted the portion whirl seem, hest adapted to his interests. .1 partition sale is conducted on the same principles a. any other judicial sale. 11.rai. PRonEttrY: dotxr TENANCY. I the authorities referred to under IlEAL PRoPEE11 and hart Fry.