PARTITION. The division which is made between several persons of lands, tenements, or hereditaments, or of goods and chattels which belong to them as coproprietors. The term is more technically applied to the divi sion of real estate made between co-parcen ers, tenants in common, or joint tenants.
Voluntary partition is that made by the owners by mutual consent. It is effected by mutual conveyances or releases to each per son of the share which he is to hold, exe cuted by the other owners. Cruise, Dig. tit. 32, c. 6, § 14.
Compulsory partition is that which takes place without regard to the wishes of one or more of the owners.
At common law the right of compulsory partition existed only in cases of co-parcen ary ; Litt § 264. By statutes of 31 Henry VIII, C. 1, and 32 id. c. 2, the right was ex tended. to joint tenants and tenants in com mon. These statutes have been generally re enacted or adopted in the United States, and usually with increased facilities for parti tion; 4 Kent 362; Co. Litt. 175 a; 2 Bla. Com. 185; 16 Vin. Abr. 217. Partition at common law is effected by a judgment of the court and delivering up possession in pursu ance of it, which concludes all the parties to it. In England the writ of partition has been abolished by stat. 3 & 4 Wm. IV. c.'27, § 36.
Courts of equity also exercise jurisdiction in cases of partition where no adequate rem edy could be had at law, as where the titles to the estates in question are such as are cognizable only in equity or where it is nec essary to award owelty of partition. This jurisdiction was first settled in Elizabeth's time, and has increased largely on account of the peculiar advantages of the chancery proceeding ; 1 Spence, Eq. 654. Nor have the
increased facilities grafted by statute upon the common-law proceedings ousted the ju risdiction ; 1 Story, Eq. § 646.
Partition in equity is effected by first as certaining the rights of the several parties interested; and then issuing a commission to make the partition required; and finally. on return of the commissioners and con firmation thereof, by decreeing mutual con veyances between the parties ; Mitf. Eq. Pl. 120; 2 Sc. & L. 371. Where the titles of the parties are legal titles, the decree in the par tition has been held to vest the in the purparts without conveyances.
A suit in the nature of partition cannot be maintained where there has been an oust er of the complainants by the defendant ten ant in common, by acts so overt and notori ous as to imply notice to his co-tenants; Rich v. Bray, 37 Fed. 273, 2 L. R. A. 225. An adverse holding by any one of the parties for a period of time, however short, before the institution of proceedings in partition, is ef fectual to defeat the proceedings ; Welch's Appeal, 126 Pa. 297; 17 AU. 623.
A voluntary partition of land by persons under legal disabilities is binding when fair ly and equally made and free from fraud; Mickels v. Ellsesser, 148 Ind. 415, 49 N. E. 373.
Where there is a parol partition, a party acquiescing in it and accepting exclusive pos session under it is estopped from asserting title or right to possession in violation of its terms ; Berry v. Seawall, 65 Fed. 742, 13 C. C. A. 101.