XXIV. Partition. Part of premises to belong to one party, and part to the other. Referees to determine equality of partition. Umpire, in default of referees, to determine equality of partition. Referees, or 1. The said two closes or parcels of lands shall hereafter belong to, and become the sole property of the said [first party], his heirs and assigns; AND that the said messuage or tenement, and garden, shall hereafter belong to, and become the sole property of the said [second party], his heirs and assigns. 2. It shall be referred to of &c., a referee nominated by and on behalf of the said [first party], and of &c., a referee nominated by and on behalf of the said [second party], to decide and determine (ƒ) whether any, and what sum of money, shall be paid for equality of partition; and whether by a yearly payment, with a power of distress and entry, or by the payment of a sum in gross; and by which of the said parties, and at what time, such money shall be paid (g); AND if the said referees should not agree in their determination, within the space of calendar months from the date hereof, Then the same shall be referred to such one person as the said two referees shall, shall hereafter belong to, and become the sole property of the said [first party] for the remainder of the said term; And that the messuage and garden, now in the occupation of shall hereafter belong to, and become the sole property of the said [second party] for the remainder of the said term." (f) "which of the said parties shall hereafter, during the umpire to de- said term, pay the yearly rent of £ termine which party shall pay rent, or in what proportions; and whether cross tress shall be reserved and made payable by the said indenture of lease, or otherwise in what proportion they shall pay the same; and whether there shall be inserted in the conveyances and assignments hereinpowers of dis- after agreed to be made, cross covenants for payment of the inserted in as- apportioned rent, and cross powers of distress and entry on signments. the non-payment of the same, by the said parties respectively, in order that the said parties respectively may be reimbursed all costs, charges, and expenses, which either of them shall incur by reason of the non-payment of the rent to be paid by the other of the said parties, and" REVERSION. (g) "and to which of the said parties, or in what proportion, the yearly rent, reserved by the said indenture of lease, shall be paid during the continuance of the term thereby granted;" within the space of calendar months from the date XXIV. Partition. calendar months thereof, for that purpose appoint to be umpire, who shall decide and determine the same within next after he shall be appointed umpire. execute 3. When it shall have been determined whether any and Parties to what sum of money shall be paid for equality of partition, and mutual conin what manner, and by which of the said parties such money veyances. shall be paid (h), Then the said parties respectively shall (i) execute all such conveyances or assurances, as shall be necessary for effecting the partition hereby agreed to be made; and upon the execution of such conveyances, or assurances the money, if any, payable for equality of partition shall be paid; and the same shall until payment thereof be a charge upon the part or share of and in the said premises, the owners whereof shall be liable to make such payment. ferees, or um 4. The said referees, or their umpire, shall be, and they Power to reand he are hereby authorized, (if they or he should think fit), pire, to make to make a survey of the lands and hereditaments, and cause survey, &c. a map or plan to be drawn thereof. own convey 5. The costs, charges, and expenses of the respective con- Each party to veyances of the premises to be taken in severalty, shall be pay for his paid and borne by the party to whom the same shall be ance. made; but the costs, charges, and expenses of preparing, But other engrossing, and executing this present agreement [and a charges to be duplicate hereof], or in anywise relating thereto, and of borne equally. making such survey, and of such map as aforesaid and all (h) "and which of the said parties shall be entitled to the said yearly rent, or in what proportions," (i) "with the license and consent of the lord or lords, lady or ladies, of the manor or manors, of which the same are holden, make, do, and execute, all such acts, deeds, conveyances, surrenders, or assurances, as the counsel of the said parties respectively, or their respective heirs or assigns, shall advise or require, for the purpose of conveying, surrendering, and assuring the said, &c." It seems that a partition by agreement cannot be perfected without the license, or subsequent consent, of the lord: such as admitting them tenants to the respective parts in severalty: Hale's MS., Hargr. n. Co. Litt. 59 a, (1). The power of the Court as regards partition is extended to lands of copyhold and customary tenure by the stat. 4 & 5 Vict. c. 35, sect. 85. costs and COPYHOLD. XXIV. Partition. Referees, or umpire, to de have titledeeds, and who shall pay other costs, charges, and expenses of the said referees, or their umpire, and all other costs, charges, and expenses incurred, or to be incurred, in or about the partition hereby agreed to be made, or in anywise relating thereto, shall be paid and borne by the said parties hereto respectively, in equal proportions. 6. The said referees, or their umpire, shall decide to which cide who shall of the said parties the custody of the several title-deeds relating to the said lands and hereditaments shall respectively belong and by which of them, and in what proportions, the expenses of any attested copies or covenants for production of deeds, or acknowledgments of right to production thereof, and undertakings for safe custody thereof, which the said referees, or their umpire, may deem necessary, shall be borne. for attested copies, &c. AS WITNESS, &c. Parties. Recitals of intestacy, and seisin of father; XXV. AGREEMENT for a PARTITION by CoмMISSIONERS, of FREEHOLD and COPYHOLD Premises, between two Co-HEIRESSES and their HusBANDS, and the TRUSTEES of a SETTLEMENT of the Share of one; AND that certain parts of the Property shall be taken as part of each Allotment. ARTICLES OF AGREEMENT made the day of day of- BETWEEN A., of &c., and B., his wife, of the first part [two trustees], of &c., of the second part; D., of &c., and E., his wife, of the third part. WHEREAS [father], of &c., died intestate on or about the in the year 18-, seised of, or sufficiently entitled to the fee-simple of the freehold and copyhold lands and hereditaments hereinafter described, and hereby agreed to be partitioned, and which thereupon descended to the said B. and E. as his only children, and heirs-at-law: AND WHEREAS by an his daughters; indenture dated the day of -, 18-, and expressed to be made between the said B. by her then name and description of [maiden name], of the first part, the said A. of the second part, and [trustee] of &c., of the third part, of settlement (being a settlement made on the marriage of the said A. and of one moiety; B., and which was afterwards duly solemnized), the moiety of descent to XXV. Partition. as husband or equal half part of the said B., of and in the said lands and hereditaments, was conveyed and covenanted to be surrendered to the said [trustee] and his heirs; As to the said to such uses freehold lands and hereditaments, to the use of, and as to the and wife said copyhold (a) lands and hereditaments, in trust for such should jointly appoint; person or persons, and for such ends, intents, and purposes as the said A. and B. by deed jointly appoint: And in default in default, as of such joint appointment, to the use of and in trust for such wife alone should by will person or persons as the said B., by will, whether sole or covert, appoint; should solely appoint; and in default of such appointment, in default, to or so far as the same should not extend, to the use of, and fee, if the sur husband in vivor ; holds. (a) The Statute of Uses does not extend to copyholds, because Copyholds are the transmutation of possession by the sole operation of the not within the statute, without the consent or allowance of the lord, or the statute. agreement of the tenant, would tend to the prejudice both of the lord and of the tenant: Co. Cop. s. 54; Tr. 124; Wms. n. 2 Saund. 11. g: and this is plain from common experience; for, As to future when a copyholder surrenders to the use of another the posses- or springing sion is not executed to the use, as the estate remains in the suruses of copyrenderor, and surrenderee has nothing until admittance but an equitable estate: Gilb. Ten. 182; 1 Sand. Uses, 5th edit. 249; 1 Cru. Dig. 4th edit. 354, 397; Cru. Uses, 55; Sug. Gilb. Uses, 72: and therefore a surrender of copyhold lands to uses is not to be considered on the foot of a use or trust; for, as copyholds are not within the Statute of Uses, such surrender is only a direction to the lord whom to admit; and when admitted, the surrenderee is in by the grant of the lord, not of the surrenderor; so that it is of a particular nature, and not as a use or trust on the statute: per Lord Hardwicke, 2 Ves. 257; 1 Watk. Cop. 100, 185; 2 Ibid. 193; and therefore the construction of the surrender of copyholds must be the same as if the estates had been limited by feoffment, or any other deed deriving its effect purely from the principles of the common law, without the intervention of the Statute of Uses, and must be alike governed by the same rules of the common law: per Holt, C. J., 1 P. Wms. 77. The case of Boddington v. Abernethy, 8 Dowl. & Ryl. 626; 5 B. & Cr. 776, established that a power of revocation and new appointment may be reserved of copyholds. See 1 Scriv. Cop. 226, 3rd ed.; Elton, Cop. 30, 68. And a power of appointment over copyholds may co-exist with an interest in them. As, where copyholds were surrendered by R. to such uses as D. should by deed appoint, and in default of, and until such appointment, to the use of D. in fee; and D. appointed that the premises should remain to the use of P., it was held that the lord was compellable to admit P.; notwithstanding D. had never been admitted, and that neither he nor R. had ever surrendered to the use of P.: Rex v. Lord of the Manor of Oundle, 3 Nev. & M. 484; 1 Ad. & El. 283. XXV. Partition. of settlement of the other moiety; to certain uses and trusts; with powers to trustees, with consent of husband and wife, or the survivor, to make sale, tition. Testatum. Commissioners to make partition, and decide money for in trust for the said A., his heirs and assigns, in case he should survive his said wife: AND WHEREAS by an indenture dated the day of ———————————, 18—, and expressed to be made between the said E. by her then name and description of [maiden name], of the first part, the said D. of the second part, and the said [trustees] of the third part (being a settlement on the marriage of the said D. and E., and which was afterwards duly solemnized;; the moiety or equal half part of the said E., of and in the said lands and hereditaments, was conveyed, and covenanted to be surrendered to the said [trustees] and their heirs, to certain uses, and upon certain trusts, therein particularly mentioned: In which lastly in part recited indenture of settlement are contained the usual powers to the said [trustees], with the consent in writing of the said D. and E., or the survivor of them, to make sale, partition, or exchange of the moiety of the said lands and hereditaments therein mentioned; with power to raise money to be paid, or to invest money received for equality of partition: AND WHEREAS the said A., and B. his wife, and the said [trustees], with the consent of the said D., and E. his wife, testified by their signing the agreement, have mutually agreed to make a partition of the lands and hereditaments mentioned in the schedule hereunder written. NOW THESE PRESENTS WITNESS, that for effectuating the said partition, the said A. and the said B., his wife, hereby respectively agree with the said [trustees], and they the said [trustees], as such trustees as aforesaid, with the consent of the said D., and E. his wife, testified as aforesaid, hereby agree with the said A., and B. his wife, in manner following, that is to say: 1. A partition or division of all and singular the said lands and other hereditaments, mentioned and comprised in the said schedule hereunder written [or hereunto annexed,] into two separate allotments, of equal value, or as nearly so as circumstances will permit, shall be made by [commissioners] of &c. 2. The said commissioners shall decide and determine, who shall pay whether any, and what sum of money shall be paid for equality of partition, and by which of the parties such money shall be so paid. equality. Commissioners au thorized to 3. For further enabling the said commissioners to make such allotments and division as aforesaid, it shall be lawful |