of the land, lessees for a term originally not exceeding fourteen years, tenants from year to year, and tenants at will are not entitled to apply, the persons interested in such cases being those who are entitled in reversion immediately expectant; also in cases where the land is held on lease for a life or lives, or for a term originally exceeding fourteen years, at a rent of less than two-thirds of the clear yearly value of the premises, the lessor and lessee must apply jointly; and where a person is in possession as receiver, or under a writ of execution, the application must be made by him and by the person who, but for his possession, would have been in possession of the land, or in receipt of the rents and profits (d). The owner of a term originally exceeding one hundred years is entitled to apply if no rent or acknowledgment has been paid or given for twenty years, or if the reversioner is unknown (e); and the Board may also, on the application of persons in possession of lands under any agreement for exchange, proceed with the exchange under the provisions of the Inclosure Acts (ƒ). Where two or more persons are interested jointly, severally, as a class, or in common in any land proposed to be exchanged, the application of two-thirds in value of the persons so interested jointly, severally, as a class, or in common, is to be deemed as the application of all persons interested or having any estate in the land (g). Undivided shares in land may also be exchanged under the provisions of the Inclosure Acts upon the application of the persons interested (); and a person who is interested in several parcels of land held under separate titles, or for distinct and separate interests, or subject to separate charges or incumbrances, may effect exchanges of the several parcels (d) Ibid. s. 16. And see the Instructions of the Board of Agriculture printed in the Appendix, post. (e) 17 & 18 Vict. c. 97, s. 4. (g) 12 & 13 Vict. c. 83, s. 7. in the same manner as if different persons had been interested therein (i). It may be mentioned, that all the provisions of the earlier Inclosure Acts relating to the inclosure, exchange, &c. of land not subject to be inclosed under these Acts, or of land subject to inclosure but as to which no inclosure proceedings are pending, are now applicable to the case of land subject to inclosure under these Acts while inclosure proceedings are pending (k). "All hereditaments, corporeal and incorporeal, may now," says Mr. Cooke (7), “be exchanged as freely and as easily as a piece of merchandise. These very extensive powers of exchange are altogether new to our law, and titles dependent on the Commissioners' (m) orders of exchange, division, or partition, were at first looked upon with some hesitation. What appeared especially startling was, that the tenure as well as the title passed over with the property of the land exchanged: that the person exchanging retained his old title, his old incumbrances, and his old tenure, changing nothing but the site of his previous property, and this involved the consequence that a piece of freehold being exchanged for a piece of copyhold, the copyhold immediately becomes a freehold, and the freehold a copyhold. This bold and startling effect was quite necessary to the full accomplishment of the Act but this species of legal metempsychosis was so novel, that it was scarcely recognised as a practical fact until it had been pronounced orthodox legal doctrine by a recorded decision of the Courts." It should be noticed, however, that there are certain incumbrances which still remain charged on the original lands, notwithstanding an exchange under the Inclosure Acts. These charges comprise the land tax, tithe rent-charges, chief rents, or quit rents due (i) 12 & 13 Vict. c. 83, s. 11. (m) Now the Board of Agricul ture. from freehold lands, improvement and drainage rentcharges, and rates levied by drainage commissioners. Quit rents due from copyholds will, however, become due and payable from the land which by the exchange is converted into copyhold (n). Exchanges of lands belonging to charities may also be Exchanges of made under the Acts relating to the sale and exchange of charity lands. charity estates (0). ecclesiastical corporations. Ecclesiastical corporations, and rectors, vicars, perpetual Exchanges by curates, incumbents of benefices, and prebendaries of prebends, which are not prebends of cathedral or collegiate churches, may make exchanges with the approval of the Church Estate Commissioners. These corporations and persons are empowered to exchange with any lessee under any lease granted by them all or any lands comprised in the lease, or their reversion, estate, and interest in such lands for any other lands, whether of freehold, copyhold, or customary tenure, or for the estate and interest of the lessee in any other lands belonging to them, and upon any such exchange, either to receive or pay any money by way of equality of exchange; but in such cases, the Commissioners have to pay due regard to the first and reasonable claims of the lessees arising from any long-continued practice of renewal (p). Provision is made by 17 & 18 Vict. c. 116 (2), for ascertaining in such cases whether a copyholder has a right of renewal. Partitions of copyholds may be effected by surrenders Partition of and admittances with the lord's consent, or by a decree in copyholds. a partition action, or under the provisions of the Inclosure Acts. There could not be a partition of copyholds without the intervention of the lord, for such an act was an (n) See Instructions of Board of Agriculture, Appendix, post. (0) 16 & 17 Vict. c. 137, ss. 2426, 66; 18 & 19 Vict. c. 124, ss. 29 -39; 50 & 51 Vict. c. 49, s. 5. (p) 3 & 4 Vict. c. 113, s. 68; 5 & 6 Vict. c. 26, s. 8; 14 & 15 Vict. c. 104, ss. 1, 11; 21 & 22 Vict. c. 57, ss. 3-6; 24 & 25 Vict. c. 105, s. 3; 25 & 26 Vict. c. 52, s. 2. (2) Sect. 5. Under the Under the Acts. interference with his rights in his absence by dividing his tenements, altering the accustomed rents and services, and forcing upon him a different tenant (r). Before the year 1841, the Courts had no jurisdiction to direct the partition of copyholds (s); but by sect. 85 of the Copyhold Act, 1841 (t), power was given to the Court of Chancery to direct the partition of copyholds in the same manner as it might direct the partition of freeholds. Yet, although the Court of Chancery had no jurisdiction in a mere partition suit to decree partition before the Act of 1841, the Court had decreed the specific performance of an agreement made before the passing of the Act between joint tenants of a copyhold estate to divide the land and hold the respective parts in severalty, and had ordered the parties to make mutual surrenders for that purpose, on the ground that joint tenants might sell to a stranger who could compel them to perform the contract, and they themselves might also compel the lord to accept a surrender from them and admit the purchaser (u); and where freeholds and copyholds were held together, a partition had been indirectly effected by an allotment of the whole of the copyholds to one of the coparceners (x). In a partition action, if one of the persons entitled to the legal estate is under disability, the Court may declare him to be a trustee, and vest or convey his estate, or direct a conveyance, by an order under the Trustee Act, 1850 (y). Partitions of copyholds may also be made under the provisions of the Inclosure Acts, 1845 to 1882, either by the award of a valuer in cases where the land is subject to be inclosed under the terms of these Acts (2), or by the order (r) Oakeley v. Smith, 1 Eden, 261. (s) Scott v. Fawcet, Dick. 299; Burrell v. Dodd, 3 B. & P. 378; Horncastle v. Charlesworth, 11 Sim. 315.. (t) 4 & 5 Vict. c. 35. (u) Bolton v. Ward, 4 Hare, 530. (x) Dillon v. Coppin, 6 Beav. 217, n. (y) Sect. 30; and see 53 & 54 Vict. c. 39, s. 135, as to vesting orders in case of lunatic trustee. (2) 8 & 9 Vict. c. 118, s. 90. A.. copy of the instructions issued by of the Board of Agriculture in cases where the land is not subject to inclosure, or where, though the land is subject to be inclosed, no inclosure proceedings are pending (a). The Inclosure Act, 1848, enacts that all the provisions of the Inclosure Acts applicable to exchange are to extend to partitions (b), but in regard to the persons interested it should be noted that it is unnecessary for lessees to join in applications for partitions (c), and that the provisions as to dissents do not apply to partitions if two-thirds in value of the persons interested apply (d). Land in undivided shares held under separate titles, or for distinct and separate interests, or subject to separate charges or incumbrances, by the same person, may be partitioned in the same manner as if different persons had been interested (e). The order of partition must specify the land which is allotted in severalty to each person in respect of the undivided part in which he is interested. The land when allotted in severalty enures to the same uses and trusts, and becomes subject to the same conditions, charges, and incumbrances as affected the undivided part in respect of which it was allotted (f). The award or order of partition, as the case may be, must be confirmed by the Board of Agriculture on the same terms as those already mentioned with regard to an order of exchange, the confirmation being conclusive evidence in both cases that the provisions of the Acts have been complied with (g), and in the case of the order of partition rendering it free from impeachment by reason of any infirmity of estate or defect of title of the persons on whose application it was made (h). But an award of partition even when con the Board of Agriculture for effect- (e) 22 & 23 Vict. c. 43, s. 10. (d) Ibid. s. 11. (e) 15 & 16 Vict. c. 79, s. 31. (f) 11 & 12 Vict. c. 99, s. 13. (g) 8 & 9 Vict. c. 118, s. 105; 39 & 40 Vict. c. 56, s. 33. (h) 8 & 9 Vict. c. 118, s. 147. |