from the day of, 18-, for the term of XXIII. eighteen years, at the rent, and subject to the covenants and Agreement to settle Disputed Boundaries of Church Lands. of the lessees of W., the bill was dismissed by Sir W. Grant, M.R., who said (p. 417): "On what principle can a Court of Equity inter- Boundaries. fere between two independent proprietors, and force one of them to have his rights tried and decided in any other than the ordinary legal mode in which questions of property are to be decided? In some cases, certainly, the Court has granted commissions or directed issues, on no other apparent grounds than that the boundaries of manors were in controversy. In Wake v. Conyers, 2 Cox, 36, however, Lord Northington held that it was in the case of manors that the exercise of the jurisdiction, which he says had been assumed of late, was peculiarly objectionable. He refused either to grant a commission, or to direct an issue. So did Lord Thurlow in the case of two parishes. In the same case of Wake v. Conyers, Lord Northington says, that in his apprehension this Court has simply no jurisdiction to settle the boundaries even of land unless some equity be superinduced by act of the parties. I concur in that opinion, and think that the circumstance of a confusion of boundaries furnishes per se no ground for the interposition of the Court." See also Lethieullier v. Lord Castlemain, 1 Dick. 46; Sel. Ch. Ca. 60; 2 Eq. Ab. 161. If the owner of lands subject to a rent or service confuse the Distress preboundaries so as to prevent a distress, the owner of the rent or vented by conservice may have a commission; 1 Ch. Cas. 145; 1 Br. C. C. fusion of 201; 1 Ves. sen. 172: Duke of Leeds v. Earl Strafford, 4 Ves. 180. Where a confusion has been caused by the conduct of the tenant, the jurisdiction will be exercised, although no fraud appears to have been intended. Att.-Gen. v. Fullerton, 2 Ves. & B. 263. See Loker v. Rolle, 3 Ves. 4: Ashton v. Lord Exeter, 6 Ves. 290; Grierson v. Eyre, 9 Ves. 341. boundaries. Where a lessee during his possession had allowed the boun- There must be daries between his own property and that which he held by some ground demise to become confused, a bill for a commission filed by him in equity after his lease had expired, against an assignee of the lessor, defendant to against the who had obtained possession of both properties, but not, it warrant the appeared, improperly, was dismissed by Sir T. Plumer, M. R., Court's interwho said that the Court would not interfere between independent proprietors; but there must be shown some misconduct on the part of the defendant or those under whom he claims, which renders it incumbent on him to co-operate in re-establishing the boundaries. Miller v. Warmington, 1 Jac. & W. 472. ference. Where the defendant and his ancestors had from the time of Godfrey v. Henry VIII., been lessees under Queen's College, Cambridge, Littel. of a field which in the leases had been uniformly described as containing by estimation sixty acres, and on the expiration of the last lease the defendant delivered up only forty acres, alleging that the customary estimated acre contained only three roods, and claiming certain adjoining property which had been fenced within the last sixty years as his own; the Court, being satisfied that some part of the college land had been retained by the de Boundaries of day of XXIII. conditions, therein mentioned: AND WHEREAS by an indenAgreement to ture dated the and made &c., All settle Disputed (transcribe the freehold parcels so far as is material), with the Church Lands, appurtenances, were conveyed unto and to the use of the said [wife], her heirs and assigns: AND WHEREAS the last-menOf conveyance in fee to wife; tioned freehold hereditaments abut upon and adjoin the hereditaments so as aforesaid demised by the said indenture of demise, in a line extending in direction from Westwards, to that the estates are adjoining; that the boun known in some parts. south -, (describe the boundary so far as it is daries are not ascertained), but the exact limit and boundary between the hereditaments comprised in the above-recited indenture of the day of — —, 18—, and the hereditaments comprised in the said indenture of demise, is not certainly known as to so much of the said limit and boundary as is between map. refer settle and (state the extremities of the disputed boundary), which uncertain or unknown part of the said limit or bounReference to dary is left uncoloured in the map or plan of the said hereditaments, drawn in the margin of these presents, the ascertained and known parts of such limit or boundary being in Agreement to the same map or plan indicated by a blue line: AND ment of boun- WHEREAS it has been agreed between the parties hereto, that the settlement of such uncertain or unknown limit or boundary shall be referred to the adjudication of [referee], of &c., under or by virtue of an Act passed in the second and third years of the reign of King William the Fourth, intituled, "An Act to authorize the identifying of Lands and other Possessions of certain Ecolesiastical and Collegiate Corporations." NOW THIS INDENTURE WITNESSETH, that the parties daries. Testatum. Discretion of the Court in granting an issue or a commission. Evidence at law. fendant, directed a commission to settle the boundaries, or a compensation, although the defendant strongly contended for an issue. On that question the Court said, that the Court would be guided by the circumstances of the case: if the question is merely whether certain specified land belongs to A. or to B., an issue is fittest; but when the limits in dispute are not ascertained on both sides respectively, and a question of compensation may arise, a commission will be most proper: Godfrey v. Littel, 1 Russ. & M. 59; affirmed on appeal, 2 Russ. & M. 630. As to the form of the decree for a commission, see Duke of Leeds v. Earl Strafford, 4 Ves. 186: Willis v. Parkinson, 2 Mer. 507. As to the evidence of boundaries in a trial at law, see Bridgeman v. Jennings, Lord Raym. 734; Thomas v. Jenkins, 1 Nev. & P. 587; Taylor v. Devey, 2 Id. 469; Briscoe v. Lomax, 3 Id. 308; Evans v. Rees, 2 Per. & D. 626. XXIII. settle Boundaries of Parties agree ment of boun A. B. to examine made. hereto (c) severally declare and agree, that the final settlement of the uncertain or unknown limit or boundary shall be, and Agreement to is hereby referred to the adjudication of [referee]: AND that Disputed the said [referee] shall be and is hereby fully authorized to church Lands. make such surveys, maps and admeasurements of the hereditaments herein before mentioned or referred to, or of any of that settlethem, or of any part thereof respectively; And to summon daries shall be such persons as witnesses, and examine them on oath, con- referred to cerning the matter hereby referred, or in any way relating Power to thereto; And to call for the production of all such surveys, makesurveys; maps, deeds, books, papers, and writings, in the custody or witnesses; power of any of the parties hereto, or of any other person or to call for persons, of or concerning the matter hereby referred, as the deeds, &c. said [referee] shall think fit. AND FURTHER, that the Award and said [referee] having well and sufficiently investigated and map to be considered the same, and all matters hereby to him referred, shall and may make his award in writing, under his hand and seal, with a map drawn thereupon, or thereunto annexed: Which award and map shall be upon parchment or vellum, and shall award and determine, identify, delineate, and describe the boundaries, quantities, particulars, and situations of the said hereditaments so referred to him as aforesaid: And which award and map shall be laid before all the parties Approbation hereto, and upon the approbation of each of the parties hereto of parties to being written upon the same award and sealed with the seal and map bindof the said Dean and Chapter, and signed () and sealed by each of the other parties hereto, the same award and map shall be for ever afterwards binding upon each and all of the parties hereto, and their several and respective successors, heirs, executors, administrators, and assigns, and final and conclusive as to all matters therein or thereby respectively contained or referred to. AND IT IS LASTLY HEREBY AGREED make award ing and con clusive. Costs to be borne equally. (c) If the consent of any spiritual superior is requisite (see 2 & Consent. 3 Will. 4, c. 80, s. 2), add, "By and with the consent of executing these presents." -, testified by his [their] The approbation of the award in such case must also be executed by such consenting party: Ib. (d) The Act requires the approbation to be signed and sealed by all parties, but, in the case of a Dean and Chapter, the affixing of the corporate seal is the only signature that can be made. XXIII. Boundaries of that the expenses attending the preparation and execution of Agreement to settle these presents, and the proceedings for carrying the reference Disputed hereby made into effect or relating thereto, shall be equally Church Lands. divided and paid and borne among and by the said parties hereto respectively, or their respective successors, executors, administrators, or assigns. IN WITNESS whereof the said Dean and Chapter have set their common seal, and the said other parties hereto have severally set their hands and seals the day and year first above written. DATED in the chapter-house of the said Dean and Chapter, the day and year first above written. Parties. Partitions, how effected. XXIV. AGREEMENT for a PARTITION of FREEHOLD, COPYHOLD, or LEASEHOLD Premises; where the Part which each is to take in Severalty has been previously ascertained; and it is referred to COмMISSIONERS, or their Umpire, to determine the Sum to be paid for Equality of Partition (a). ARTICLES OF AGREEMENT made the of, 18—, BETWEEN [first party], of &c., of the one part; and [second party], of &c., of the other part. day (a) Partitions may be effected under the order of the Court on the application of any one or more of the joint tenants, even though the others may be unwilling or unable to consent. Compulsory partitions were formerly effected by writ of partition, but this mode of proceeding was abolished by the stat. 3 & 4 Will. 4, c. 27. The present practice is for the Court to issue a commissien for the purpose. Under the Partition Act, 1868 (31 & 32 Vict. c. 40), s. 3, the Court has power to order a sale instead of a partition, and where the owners of a moiety or upwards of the property request a sale, is to direct a sale accordingly "unless it sees good reasons to the contrary" (sect. 4). See as to this, Pemberton v. Barnes, L. R., 6 Ch. 685; Wilkinson v. Joberns, L. R., 16 Eq. 14; Porter v. Lopes, 7 Ch. D. 358; see also Rowe v. Gray, 5 Ch. D. 263. The procedure of the Court in partition actions was modified by the Partition Act, 1876 (39 & 40 Vict. c. 17), which also allows actions for sale of joint property without the necessity of claiming a partition (sect. 7). See, as to the jurisdiction of the Court as regards partitions, Swaine v. Denby, 14 Ch. D. 326; Taylor v. Grange (C. A.), 15 Ch. D. 165; Waite v. Bingley, 21 Ch. D. 674; Biggs v. Peacock (C. A.), 22 Ch. D. 284; Boyd v. Allen, 24 Ch. D. 622; see also Pitt v. Jones, 5 App. Cas. 651. A power of exchange in a settlement authorizes a partition: Re Frith and Osborne, 3 Ch. D. 618. XXIV. Partition. WHEREAS (b) the said parties hereto are seised of or entitled to the fee-simple (c), as tenants in common [or in joint tenancy, or in coparcenary] (d), in possession of All those seisin in postwo closes or parcels of land, situate at of, in the occupation of in the county session. ; And also all that Parcels. messuage or tenement and garden situate at in the occupation of aforesaid, AND WHEREAS the said [first Recital of partition. party] and [second party] have mutually agreed to effectuate a agreement for partition of the said lands and hereditaments, upon the terms and in the manner hereinafter mentioned. NOW THESE Testatum. PRESENTS WITNESS, and it is hereby agreed between the parties hereto, in manner following: that is to say (e): day of (b) If the premises be leasehold, say, "WHEREAS by indenture, dated the 18-, and made between [lessor], of &c., of the one part; and [lessee], of &c., of the other part; the said [lessor] demised unto the said [lessee] All those two messuages and gardens, situate at in the county of ——, with the appurtenances, for the term of day of years, from the 18-, at the yearly rent of £ LEASEHOLD. Recital of lease. and subject to the several covenants and agreements therein contained. AND WHEREAS the said [lessee] died intestate in Intestacy of or about the year 18-, and administration of his personal lessee, and estate and effects was granted to the said [first party] in the ministration. Principal Registry of Her Majesty's High Court of Justice, day of grant of ad 18-. AND Of parties as next of kin Probate Division, on the WHEREAS the said [first party], and the said [second party], being entitled are the only children and next of kin of the said [lessee]; of lessee. and as such are possessed of, or entitled to, the said messuages and gardens, with the appurtenances, for the remainder of the said term." (d) If the premises are subject to a lease, say, REVERSION. "in remainder or reversion expectant upon the determination Subject to of a term of day of 18-, and expressed to be made between [parties]." (e) The messuage and garden, now in the occupation of lease. LEASEHOLD. |