Partition, in law, the severance of common or undivided interests. It is particularly applied to interests in realty. At common law lands held by two or more persons were held by them either in joint tenancy, in common, or in coparcenery. The first two of these estates were created by the act of the parties. The last was created by operation of the law, when in casting a descent it devolved a single estate upon two or more heirs; as, for example, when an estate in fee of one who left no male succession passed to his daughters or other female representatives. These persons were called coparceners. Theirs was the only joint estate of which the common law would compel a dissolution at the request of a single party. Joint tenants and tenants in common became so, said the law, by their own mutual agreement and act, and the tenancy could be justly severed only by their mutual consent. But coparceners are rendered so by operation of law, and lest any one of them be prejudiced by the perverseness of his fellows, the law will lend its aid, if he ask it, and help him, by partition, to the enjoyment of his separate interest.
In the reigns of Henry VIII. and of William IV. special statutes extended this common law benefit, which hitherto coparceners alone had enjoyed, to joint tenants and tenants in common; so that partition then became incident to all estates held in common. In the United States the technical joint tenancy is for the most part abolished; joint ownerships being, if not under express statutes, yet in effect, only tenancies in common. Therefore what in England would be estates in coparcenery are here estates in common, so that much of the English law of partition is inapplicable here. Yet as among us real property generally passes, on the death of an ancestor, to more persons than one, partition still retains an importance in respect to the tenancies in common of heirs and devisees. In some parts of the country, the operation of this remedy is extended by statutes beyond the limits fixed for it by the common law or the statutes of Henry VIII. - In England partition was made either by mutual consent or upon compulsion.
In the latter case, the relief was sought either by a writ of partition, sued out by one party, at common law, or by his petition to the court of chancery. The latter is now the usual mode, and there is good reason for the preference of the chancery courts, as the procedure at law in a case of partition is far less effective than that in equity. The courts of law are limited to a mere allotment according to the proportional shares of the parties in interest; and this often causes a purely mechanical, and so prejudicial, division of an estate. But chancery, not restricted to the exact balancing of equivalent shares, but capable of all equitable adjustments of the matter, may distribute among the claimants the separate, though unequal, parcels of the estate, assigning to the several parties the portions which will best suit their respective condition, equalizing such a partition by decreeing pecuniary compensation to be made, or in other cases ordering equitable payments by some for improvements made in the common property by others. This jurisdiction is exercised with peculiar fitness in all cases where purely equitable rights, conflicting claims of parties, or modes of enjoyment are to be adjusted. Courts of equity will interpose only when the title of their petitioner is clear.
If it be contested, he must try it at law. Wherever, in our states, distinct equity courts exist, they probably have concurrent jurisdiction with courts of law in respect to partitions, and, in general, such a jurisdiction as has just been described. But in almost all the states the cognizance of partitions is regulated by very minute statute provisions, and to these in each state reference must be made for the particular methods of procedure, and the powers of the courts. In some states the equity process is left undisturbed; in some the writ of partition, with certain modifications, still remains. Generally, however, the mode of obtaining partition is by petition to the higher courts of law. The courts of probate, too, are usually invested with the power to divide estates.