This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Williams, 163 Ala. 376, 50 So. 937; Betts v. Ward, 196 Ala. 248, 72 So. 110, Hazen v. Barnett, 50 Mo. 507; Nave v. Smith, 95 Mo. 596, 6 Am. St. Rep. 79, 87 S. W. 796.
35. See Co. Litt. 169a; Docton v. Priest Cro. Eliz. 95; Allnatt, Partition, 172, 129.
36. Co. Litt. 169a, 187a; Eden v. Harris, Dyer, 350b.
The doctrine of representation, by force of which a compulsory partition is made binding upon persons not ascertained, though not parties to the proceeding,38 has in one case been extended to a partition voluntarily made between life tenants, so as to bind their heirs, the remaindermen named.39 The decision was to a great extent based on the analogy, or asserted analogy, of a voluntary partition between coparceners seised in fee tail, which was always, if equal when made, regarded as binding on the issue in tail.40
- Effect on title. The rule at common law was that a voluntary partition between coparceners did not break the line of descent.40a "For instance, if A and B are coparceners, and they agree on partition and release to each other; and the farm A is allotted to A for her share, and the farm B to B for her share, them, supposing them to be seised by descent ex parte materna, the farm A will be descendible from A as seised ex parte materna, without distinguishing the part received by the deceased upon the partition from the part to which the deceased was entitled before partition."41 This rule was extended in an English case,42 to the effect that if one coparcener transferred his interest to a third person, and a partition was effected by conveyances between such third person and the other coparcener, this did not involve a break in the
37. Litt. Sec. 250; Allnatt, Partition, 123.
38. Post Sec. 204, notes 16, 17.
39. Acord v. Beaty, 244 Mo. 126, 41 L. R. A. (N. S.) 400, 148 S. W. 901; see 26 Harv. Law Rev. at p. 275.
40. Litt. Sec. 255; Co. Litt. 166a, 173b; Thomas v. Gyles, 2 Vern. 232.
40a. Comyn's Dig. Parcener (C15), citing Thetford v. Thet-ford, Savile 131a; Co. Litt. 173a; Allnatt, Partition, 144.
41. 2 Preston, Abstracts, 71.
42. Doe d. Crosthwaite v. Dixon, 5 Ad. & El. 834. It is there ssaid, per Denman, C. J., that "the effect of (the partition deed) was only that the parcener had by it
[ Sec. 203 line of descent through the latter. It was moreover, established in England that conveyances made solely for the purpose of partition did not effect such a change in the seisin or interest of a cotenant as to involve the revocation of a devise previously made by him, of his interest in the land partitioned.43 These rulings, together with the occasional statement that a proceeding by writ of partition concerns the possession only,44 apparently constitute the basis from which the courts in this country have evolved the broad doctrine that a partition deed conveys or creates no title, but merely severs the unity of possession.45 How it can be said that, when a tenant in common, who has as such a fractional interest only in any and every part of the whole tract, acquires by deed the remaining fractional interest in a particular part, the deed conveys no title, is somewhat difficult to comprehend. Before the partition he could have conveyed to another merely an undivided interest in a particular portion of the land, and if by reason of the partition he is enabled to convey that portion in severalty, it must be because by the partition he acquired that which he did not previously have.45a The doctrine referred to has, however, a divided moiety in severalty discharged from any right in the alienee, instead of an undivided moiety in common; but he had the same estate as before."
43. Luther v. Kidby, 3 P. Wms. 169 note 8 Via. Abr. 148 pl. 30;
Risley v. Baltinglass, T. Raym. 240; Atty. Gen. v. Vigor, 8 Ves. Jr. 256. See Duffel v. Burton, 4 Harr (Del.) 290.
44. Haward v. Sussex, Dyler 79b; Allnatt, Partition, 123.
45. Wade v. Deray, 50 Cal. 376; Casstevens v. Casstevens, 227 111. 547, 81 N. E. 709; Dodd v. Shan-ton, 45 Ind. App. 377, 90 N. E.
1041; Jelly v. Lamar, 242 Mo. 44, 145 S. W. 799; Dawson v. Law-rence, 13 Ohio 543, 42 Am. Dec. 210; Youngs v. Heffner, 36 Ohio St. 232; Goundie v. Northhampton Water Co., 7 Pa. 233; Chace v. Gregg, 88 Tex. 553, 32 S. W. 520; Shaffer v. Shaffer, 69 W. Va. 163, 71 S. E. 111.
45a. In Buxton v. Uxbridge, 10 Mete. (Mass.) 87, a case of vol untary partition between a tenant in fee simple and one in fee tail, it was held that the portion acquired by the former upon the partition deed was merely that of a life tenant, that being all been frequently stated, and has been applied in the following connections.
It has been decided in a number of cases that if, a married woman being a cotenant, a conveyance is made, for the purpose of partition, to her and her husband, or to the husband alone, this does not vest any interest in the husband, but the married woman has the same estate in severalty in the part allotted to her that she previously had in an undivided interest in the whole,46 except perhaps as against a bona fide purchaser for value from the husband.47 Likewise, it has been recognized that a conveyance for the purpose of partition does not change the course of descent.48 And a statute prohibiting a widow who remarries from alienating land inherited from the first husband has been held not to affect her right to join in a voluntary that a tenant in fee tail could convey. See also Eggner v. Hove-kamp, 134 Ky. 224, 119 S. W. 818; Re Coates Street, 2 Ashm. (Pa.) 12, stated post, note 52.
46. Whitsett v. Wamack. 159 Mo. 14, 81 Am. St. Rep. 339, 59 S. W. 9G1; Starr v. Bartz, 219 Mo. 47, 117 S. W. 1125; Powell v. Powell, 267 Mo. 117, 183 S. W. 625; Harrison v. Ray, 108 N. C. 215, 11 L. R. A. 722, 23 Am. St. Rep. 57, 12 S.E. 993; Sprinkle v. Spain-hour, 149 N. C. 223, 62 S. E. 910; Trimble v. Reis, 37 Pa. 448; Stof-fal v. Jarvis, 235 Pa. 50, 83 Atl. 609; Cottrell v. Griffiths, 108 Tenn. 191, 57 L. R. A. 332, 91 Am. St. Rep. 748, 65 S. W. 397; Yancey v. Radford, 86 Va. 638, 10 S. E. 972.