216. There may be a partition of all kinds of joint estates except tenancies in entirety.
Partition may be either voluntary 83 or compulsory. Voluntary par-tition cannot be by parol84 except for tenancies in co-parcenary,85 though many cases give effect to a parol partition when followed by possession of the shares in severalty.86 Rights may be acquired under such partition by long possession.87 Voluntary partitiod should be made by mutual deeds. Joint estates may be so created that partition of them cannot be had,88 but, in the absence of such
81 3 Shars. & B. Lead. Cas. Real Prop. 20.
82 Inhabitants of Rehoboth v. Hunt, 1 Pick. (Mass.) 224; Hill v. Gibbs, 5 Hill (N. Y.) 56. And see Mooers v. Bunker, 29 N. H. '420.
83 But see as to rights of third persons, Einson v. Polhemus, 28 N. J. Eq. 430.
84 Duncan v. Sylvester, 16 Me. 38S; Dan v. Longstreet, 18 N. J. Law, 405. But see Ebert v. Wood, 1 Bin. (Pa.) 216; Wood v. Fleet, 36 N. Y. 499.
85 2 Bl. Comm. 324; Wildey v. Bonney's Lessee, 31 Miss. 644; Boiling v. Teel, 76 Va. 487.
86 Wolf v. Wolf, 15S Pa. St. 621, 28 Atl. 164; Jackson v. Harder, 4 Johns. (N. Y.) 202; Shepard v. Rinks, 78 111. 188; Buzzell v. Gallagher, 2S Wis. 678.
87 Manly v. Pettee, 38 111. 128; Taylor v. Millard, Us N. Y. 244, 23 N. E. 876; Mellon v. Reed, 114 Pa. St. 647, 8 Atl. 227; Momahan v. Mcmahan, 13 Pa. St. 376. Soc further, as to parol partition, 2 Jones, Ileal Prop. §§ 1940-1950.
88 Winthrop v. Minot, 9 Cush. (Mass.) 405; Hunt v. Wright, 47 N. H. 396. So there may be a valid agreement not to partition. Coleman v. Coleman, 19 Pa. St. 100; Eberts v. Fisher, 54 Mich. 294, 20 N. W. 80; Avery v. Payne, 12 Mich. 540. But see Mitchell v. Starbuck, 10 Mass. 5; Keau v. Tilford, 81 Ky. 600.
§§ 215-21(5; a provision, any joint estate except estates in entirety may be divided at the suit of one of the tenants without the consent of the others.89 But when compulsory partition is sought it must be for the whole estate, and not for part of it.90 At common law, partition could be compelled against the consent of the co-tenants only in the case of co-parcenary.91 The right to compel partition by an action at law was first given by the statutes of 31 Hen. VIII. c. 1, and 32 Hen. VIII. c. 32. These statutes have been re-enacted in most of the United States.92 The remedy is now, however, almost exclusively in courts of chancery, or is by a special form of actiou provided by statute.93 Partition can be had only by those having seisin and possession; therefore there can be no partition of joint estates in reversion or remainder.94 In New York and a few other states vested remainders are excepted from this rule.95 In an action for partition all the co-tenants must be made parties,96 as well as all other persons interested in the lands, such as lienholders, or they will not be bound by the action.97 The action of partition is a local action in rem.98 Questions of title cannot be settled in an notion for partition.99 The actual division of the land in partition is made by commissioners appointed by the court.100 If an equitable division cannot be made, one of the co-tenants may be given a larger share than the other, and he be decreed to pay the other a sum of money called the owelty of partition.101 This cannot be done, however, without his consent.102 When one co-tenant has made improvements on the joint property, for which the others have not contributed, the court may, in its discretion, give him the land on which those improvements stand.103 Two or more co-tenants may have their interests set off to them to be held in severalty as regards the other tenants, but jointly between themselves.104 If the estate to be partitioned consists of a number of parcels, each parcel need not be divided, but the partition may be made by assigning the separate parcels to different tenants.105 Some kinds of property, such as mills and factories, cannot be divided, In which case either an owelty of partition must be paid by the one who takes the whole property, or the property must be sold, and the money divided. 106 Probate courts in many states have power to make partition of estates over which they have acquired jurisdiction.107 After voluntary partition, if the title to the part which one co-tenant has received fails, such tenant has no remedy against his former co-tenants.108 But, if the partition was compulsory, each co-tenant is in the position of a warrantor of the title of the shares
89 Willard v. Willard, 145 U. S. 116, 12 Sup. Ct. 818; Rohn v. Harris, 130 111. 525, 22 N. E. 587; Danville Seminary v. Mott, 13G 111. 289, 28 N. E.'54; Smith v. Smith, 10 Paige (N. Y.) 470.
90 Duncan v. Sylvester, 16 Me. 388.
91 1 Washb. Real Prop. (5th Ed.) 710.
92 l Washb. Real Prop. (5th Ed.) 711. And see Hall v. Piddock, 21 N. J. Eq. 311; Ford v. Knapp, 102 N. Y. 135, 6 N. E. 283.
93 1 Washb. Real Prop. (5th Ed.) 723, note; Buckley v. Superior Court, 102 Cal. 6, 36 Pac. 360; Bailey v. Sisson, 1 R. I. 233.
94 Hodgkinson, Petitioner, 12 Pick. (Mass.) 374; Bragg v. Lyon, 93 N. C. 151. And see as to disseisees, Rickard v. Rickard, 13 Pick. 251.
95 Hilliard v. Scoville, 52 111. 449; Howell v. Mills, 56 N. Y. 226; Jenkins v. Fahey, 73 N. Y. 355; Smalley v. Isaacson, 40 Minn. 450, 42 N. W. 352.
96 Holman v. Gill, 107 111. 467.
97 De Uprey v. De Uprey, 27 Cal. 330; Bogert v. Bogert, 53 Hun, 629, 5 N. Y. Supp. 893; Cornish v. Gest, 2 Cos, Ch. 27. But cf. Sebring v. Mersereau, 9 Cow. (N. Y.) 344; Stewart v. Bank, 101 Pa. St. 342.
98 Bonner, Petitioner, 4 Mass. 122; Corwithe v. Gritting, 21 Barb. (N. Y.) 9.
99 Fenton v. Circuit Judge, 76 Mich. 405, 43 N. W. 437; Fuller v. Montague, 8 C. C. A. 100, 59 Fed. 212. Cf., however, Welch's Appeal, 126 Pa. St. 297, 17 Atl. 623; Hayes' Appeal, 123 Pa. St 110, 16 Atl. 600.
100 Enyard v. Nevins (N. J. Ch.) 18 Atl. 192; Donder'o v. Vansickle, 11 Nev. 389.
101 Green v. Arnold, 11 R. I. 364; Dobbin v. Rex, 106 N. C. 444, 11 S. B. 260. And see Marks v. Sewall, 120 Mass. 174; Stewart v. Bank, 101 Pa. St. 342.
102 Whitney v. Parker, 63 N. H. 416. And see Corrothers v. Jolliffe, 32 W. Va. 562, 9 S. E. 889.
103 Town v. Needham, 3 Paige (N. Y.) 545; St. Felix v. Rankin, 3 Edw. Ch. (N. Y.) 323; Brookfleld v. Williams, 2 N. J. Eq. 341.
104 Abbott v. Berry, 46 N. H. 369. And see Colton v. Smith, 11 Pick. (Mass.) 311.
105 Hagar v. Wiswall, 10 Pick. (Mass.) 152.
106 King v. Reed, 11 Gray (Mass.) 490; Higginbottom v. Short, 25 Miss. 160; Crowell v. Woodbury, 52 N. H. 613. But see Hills v. Day, 14 Wend. (N. Y.) 204; Miller v. Miller, 13 Pick. (Mass.) 237.
107 Appeal of Wistar, 115 Pa. St. 241, S Atl 797; Hurley v. Hamilton, 37 Minn. 160, 33 N. W. 912.
l08 Weiser v. Weiser, 5 Watts (Pa.) 279; Beardsley v. Knight, 10 Vt 185; Morrice's Case, 6 Coke, 12b.
§§ 215-216) Partition. 347 of the others, and, in the event of a failure of title, a new partition may be compelled, or there may be a reliance on the warranty.109 Therefore, one co-tenant cannot set up an adverse title against the others after partition.110 l09 But that a new partition cannot be compelled against an alienee after partition, see 1 Washb. Real Prop. (5th Ed.) 723.
110 Venable v. Beauchamp, 3 Dana (Ky.) 321. But cf. Coleman v. Coleman, 3 Dana (Ky.) 398.