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Report No. 86

Appendix 3

Present English Law and its Evolution

I. General Partition in English law.- In England, partition took place where land belonging to joint tenants, tenants in common, co-parceners, or (in Kent) heirs in gavelkind was divided amongst them, each taking a distinct part.1

Position at common law as to co-parcener.- Compulsory partition amongst co-parceners was effected at common law by the "writ of partition".

Position at common law as to joint tenancies.- In the case of joint tenants or tenants in common, at common law,2 there was no right to compel a partition.3 Co-parceners, who took their land by descent from the former owner,4 were allowed to insist upon partition,5 for, as their co-ownership was "cast on them by the act of the law, and not by their own agreement, it was thought right that the perverseness of one should not prevent the others from obtaining a more beneficial method of enjoying the property".6

This argument, however, was not applied to joint tenancy or tenancy in common, which necessarily arose by act of parties.7 Partition Acts of 1539 and 1540.- However, by the Partition Acts, 1539 and 1540,8 as amended9 in 1697, a statutory right to compel partition was conferred upon joint tenants and tenants in common,10 one tenant being entitled to insist upon a partition,11 however inconvenient it might be.12

Procedure for effecting partition.- The procedure in England for actually effecting the partition (where permissible) was this. A Commission was issued to Commissioners to divide the property and, on their "return" coming in, the parties were ordered to execute mutual conveyances to carry out the division.13

Writ at common law.- Failing agreement,14 the only method by which partition could be compelled was by the writ de partitione facienda.15 The writ of partition was, however, a cumbersome and difficult process. After some attempt to simplify the process in 1697,16 the writ was abolished in 1833.17

Thereafter, partition was effected by an action for partition in Chancery-a jurisdiction confirmed by statute in regard to the Chancery Division.18

1. Jowitt Dictionary of English Lim (1959), Vol. 2.

2. Megarry and Wade Real Property (1966), pp. 438, 439.

3. Litt., 290, 318.

4. Megarry and Wade Real Property, (1966), p. 441.

5. Litt, 241.

6. Williams R.P., 243, 244.

7. Williams 149; 131, Comm. ii, 180.

8. Partition Act, 1539, (31 Hen. 8, C. 1) (estates of inheritance). Partition Act, 1540, (32 Hen. 8, C. 32) (estates for life or years).

9. Partition Act, 1697 (7 & 9 Will. 3, C. 31) (improving the procedure).

10. See note (2) to Co. Litt. 169a.

11. Parker v. Gerard, 1754 Amb 236.

12. Warner v. Boynes, 1750 Amb 589. Baring v. Nash, (1813) 1 V&B 551 (554).

13. Jowitt Dictionary of English Law, (1959), Vol. 1, p. 416.

14. Halsbury's, 3rd Edn., Vol. 32, p. 344, para. 541.

15. As to the development of partition actions, see generally Pate! v. Premabhai, 1954 AC 35: (1953) 3 WLR 836 (PC).

16. By 8 & 9 Will, 3, C. 31 (1696-97) (repealed).

17 Section 36, Real Property Limitation Act, 1833 (3 and 4 Will 4, C. 27) (repealed).

18. Section 34, Judicature Act, 1873.

The Partition Act, 1893 Back

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