Partition (property)

“ Every land-owner, every owner of a factory or a commercial house, might be left free to designate which of his children he considered most competent to succeed him in the possession of such real property, and the law of partition might be considered as applicable to the rest of his property only. It would be a sort of liberty of bequest, within the limits of the family. ”

“ Had the matter been carried into the courts a commission would have been appointed to make the partition, in whose appointment the trustee would have had less to say than he had in the selection of the persons mutually chosen by himself and his son. And it seems to us that the intervention of disinterested persons for appraising the property and making the allotment was judicious and proper. It is the course most commonly pursued by those who desire to make a division of property. ”

“ In primitive or archaic society as households grow unwieldy there is a partition which involves partition of property as well as of the household. Indeed in Hindu law partition is thought of as partition of the household primarily and as partition of property only incidentally. Also in Roman law the old action for partition is called the action for partitioning the household. ”

“ We lay aside, as not open to dispute, the proposition that there is a difference between distribution and partition; and we are satisfied that that difference was in the mind of the legislature when it passed the original probate act, as well as when the Code of Civil Procedure was adopted. As correctly observed by counsel, distribution neither gives a new title to property, nor transfers a distinct right in the estate of the deceased owner, but is simply declaratory as to the persons upon whom the law casts the succession, and the extent of their respective interests ”

“ Where, if no agreement can be reached, the real or movable property may be divided and, what’s more, will not be devaluated due to the partition, the practicality shall be divided; where the joint property is difficult to be divided or may be devaluated due to the partition, partition can be carried out with regard to the payment obtained as a result of the auction, sale of the joint property or make relevant reimbursement of the estimated price respecting the joint property. ”

“ They have, therefore, a vested equitable interest in the property, of which they ought not to be deprived without being heard. They may choose to come to a partition, and to redeem their shares by paying their proportion of the money with which the estate is charged. The bill does not state, that the heirs who are not made parties are unwilling to become so, or cannot be made defendants by the service of process. ”

“ In the case of a strict partition, by division of the land itself, it is sufficient to make the present owner, or, in some cases, the tenant for life of each share, a party, because the interest of those who come after him is not otherwise affected than by being changed from an estate in common to an estate in severalty. ”

“ If we are at liberty to disregard the fifth and sixth paragraphs, which alone set out the partnership and the grounds of dissolution, we have no difficulty in finding a bill for partition, with prayer for a sale as a mode of partition, because it would be an injury to the interest of the owners to divide it up. ”

“ To the same class belong suits for partition, which are either for a division in severalty of lands before held in common, or else for a sale of the whole land, and a division or investment of the proceeds for the benefit of those who, but for the sale, would have had interests in the land. ”

“ This statute, while it authorizes the court to compel a partition by division or by sale, at its discretion, as the facts appearing at the hearing may require, does not affect the general rule governing every court of law or equity having jurisdiction to grant partition, that partition is of right, and not to be defeated by the mere unwillingness of one party to have each enjoy his own in severalty.
In equity, as at law, a pending lease for years is no obstacle to partition between owners of the fee. ”

“ The connection between the administration, settlement, distribution, and partition of an estate is such that the power to make partition may be justly regarded as ancillary to the power to distribute such estate, and therefore not alien to the probate system as it has long existed and now exists in many states. ”

“ Whenever a division shall be made of lands, the settlement of which has been, or may be, concluded with, or on behalf of, the proprietor, or proprietors, and that are, or may become, the joint property of two, or more, persons, the assessment upon each share shall be fixed at an amount which shall bear the same proportion to its actual produce, as the fixed jumma, assessed upon the whole of the estate divided, may bear to the whole of its actual produce. ”

“ The possession of one tenant in common recognizing the title of his co-tenants, is in legal consideration the possession of all; that persons under the same title, without partition, cannot prescribe against each other. ”

“ Estates in common can only be dissolved two ways: 1. By uniting all the titles and interests in one tenant, by purchase or otherwise; which brings the whole to one severalty: 2. By making partition between the several tenants in common, which gives them all respective severalties. For indeed tenancies in common differ in nothing from sole estates, but merely in the blending and unity of possession. ”

“ Let us ask, of what use to her would be the avoidance of the partition long after the title of the purchaser at treasurer's sale was consummated? She might demand a new division, because her portion of the estate had been taken away by a sale for taxes, which were a lien thereon before the division; but she and all the other heirs would thus equally lose their proportion so sold, and each heir would therefore be equally interested in its redemption. ”

“ If the holders of property would thus have a twofold share of representation, they wd. have at the same time a twofold stake in it, the rights of property as well as of persons the twofold object of political Institutions. And if no exact & safe equilibrium can be introduced, it is more reasonable that a preponderating weight shd. be allowed to the greater interest than to the lesser. ”

“ The law authorizes a sale, when the land is so circumstanced, that, in the opinion of the commissioners, partition cannot be made without great prejudice to the owners, and upon satisfactory proof of that fact being made to the court. The commissioners caused a survey, and map of the premises to be made which accompanied their report, and they express the opinion, after an examination of the same, the partition could not be made without injury to the owners. ”

“ In the familiar case of land held by several tenants in common, or even by joint tenants with right of survivorship, any one of them may compel a partition, upon which the court, if the land cannot be equally divided, will order owelty to be paid, or, in many states, under statutes the constitutionality of which has never been denied, will, if the estate is such that it cannot be divided, either set it off to one and order him to compensate the others in money, or else order the whole estate to be sold. ”

“ The proprietors were always to be eight in number; to possess the whole judicial power, and have the supreme direction of all tribunals. None but large property holders were eligible for a seat in the Legislature, where the commons were to have four members for every three of the nobility. ”

“ A parol partition was good at common law between coparceners. Littleton, sec. 252; 3 Co. Lit. 169, b.
A guardian in Pennsylvania, though not vested with a scintilla of either legal or equitable estate in the lands of his ward, may make a consentable line, and mark the boundaries of his land with an adult, which will be binding. 10 Sergeant & Rawle, 114. And a partition is nothing more than a mere designation of boundary; it passes no interest in the estate to the grantee, other than that originally held. ”

“ The lessee's interest in the fixtures arises out of the agreement contained in the lease, and of the manner and purpose of their annexation to the land, from which they could not be separated and removed without much labor and expense. It was not necessary that the officer should retain actual possession in order to keep alive a levy upon such property. ”

“ What all want to have a share in will be withdrawn from that individual who wants to have it for himself alone; it is made a common possession. As a common possession every one has a share in it, and this share is his property. Just so, even in our old relations, a house which belongs to five heirs is their common possession; but the fifth part of the proceeds is each one's property. The property which for the present is still withheld from us can be better made use of when it is in the hands of us all. ”

“ As in the Middle Ages landholding was the prevailing principle of representation in the German parliaments, so now, by a direct or disguised property qualification, the amount of tax, and therefore, since this is determined by the capital of an individual, the holding of capital, is what, in the last instance, determines the right of election to legislative bodies and therefore of participation in the control of the State. ”

“ The record of the proceedings of the partition in this case consists of the order of the Circuit Court of Sept. 12, 1832, appointing three commissioners to divide the section between the several proprietors, and to report to the court at the next term; their report at the next term, in March, 1833, showing the partition made and the part assigned to each proprietor; the confirmation of the report at that term by the court, and its apportionment of the expenses of the partition among the proprietors. ”

“ It has always been a part of the judicial function to determine whether the act of one party (whether that party be a single individual, an organized body, or the public as a whole) operates to divest the other party of any rights of person or property. ”

“ When property is so distributed among the population of a state that all have an interest in the preservation of order, then, and not till then, will it be safe to give to all a share in the power necessary for preserving it ”

“ A vacancy created by death, removal, or resignation may be filled by the court. But a committee of the property cannot alien, mortgage, or otherwise dispose of, real property, except to lease it for a term not exceeding five years, without the special direction of the court, obtained upon proceedings taken for that purpose, as prescribed in title seventh of this chapter. ”

“ Such legislation, we suppose, has its origin in the belief that it is convenient, if not desirable, for all concerned in the estate of a decedent, that the same court which supervises the final settlement of the accounts of a personal representative, and ascertains and declares the interests of heirs in such estate as may remain after the demands of creditors are satisfied, should have the power to make partition. ”

“ Moreover none of the usual precautions are adopted to mark the limits of the different properties, which, in the absence of any reliable land survey, are often very vaguely described in the title deeds.”198 In cases of intestacy real property is divided equally among the children or nearest relatives. When there is a will the testator can only reserve for his disposal a share of the estate equivalent to that which, after an equal division, descends by right to each of the direct heirs. ”

“ The tenant has the right to purchase the landlord's share also on terms to be settled by a Partition Committee. This class of tenant could thus become a peasant proprietor in the true sense of the term. ”

“ Further, that 'when such a corporation has unlawfully made a division of any of its property, or has property which cannot be attached, or is not by law attachable, any judgment creditor may file a bill in equity in the supreme judicial court, setting forth the facts, and the names of such persons as are alleged to have possession of any such property or choses in action, either before or after division. Service is to be made on the persons so named, as in other suits in equity. ”

“ The great objects of the speculation would be materially impaired and embarrassed, by any latent incumbrance, the nature and extent of which it might not always be easy to escertain, and which might by a sub-division of the property, be apportioned upon an almost infinite number of purchasers. ”

“ Each contributor to a common fund becomes interested in the fund in proportion to his contribution. Each owner of property intermingled with other property of the same kind and value, and stored in a common mass, becomes the owner as tenant in common of an interest in the mass proportionate to his contribution. If loss occurs while the common ownership continues, each owner must sustain his proportionate share. ”

“ For these reasons-that the heirs never had any other right or title to the lands, or to their possession, except under the lease, containint covenants to restore the property and possession to the lessor, or to his successor in title, on its termination-the plaintiff prays that they be adjudged to hold the lands as trustees for his use and benefit, and be decreed to couvey them to him, on his paying the money advanced in the purchase, and that he be allowed reasonable rent for the occupancy of the lands. ”

“ It is essential that relations of precise equity shall prevail between the proprietors of a Collective Home. The right of individual property in each domicile should be fortified by separate title and right of sale, subject only to chartered restrictions. In a well constructed and organized Federative Homestead such domiciles would always be salable at full cost value. A precise account, based on accurate standards of measurement, must be kept with each individual or family, including both general and special supplies and services. ”