c. 32. 3 & 4 Wm. IV. c. 27. 1868 and 1876. 32 Hen. VIII. Hen. VIII., c. 32, which enabled any joint-tenant or tenant in common to compel the others to make partition. The writ by which this was effected under these statutes was abolished by the 3 & 4 Wm. IV., c. 27, but the Court of Chancery alway exercised a power of compelling partition, in proper cases, between any of the tenants whose estates we have been conPartition Acts, sidering in this chapter. And now, by the Partition Acts, 1868 and 1876 (n), the Court is empowered in a suit for partition, where, if the Act had been passed, a degree for partition might have been made, to direct a sale of the property for the benefit of the parties interested; and (0) if a sale is requested by a party or parties interested, individually or collectively, to the extent of one moiety or upwards in the property to which the suit relates, such sale is to be directed, unless the Court sees good reason to the contrary (p). 11 & 12 Vict. c. 99. In cases where all the persons interested in the property agree to have a partition, recourse may be had to the Land Commissioners, who, under the 11 & 12 Vict., c. 99, may (q), on the application in writing of the persons interested in the undivided parts or shares of any land, direct inquiries whether the proposed partition would be beneficial to the owners of such parts or shares. If the Commissioners are of opinion that such partition would be beneficial, and that the terms of it are just and reasonable, they may cause to be framed, and confirm, an order of partition, showing the land allotted in severalty to each person so interested, in respect of the undivided part or share in which he shall be interested, and this order is of itself sufficient, without the necessity of any other deeds executed by the tenants themselves. And in (n) 31 & 32 Vict. c. 40; 39 & 40 Vict. c. 17. (0) 31 & 32 Vict. c. 40, ss. 3, 4. (p) See as to this Pemberton v. Barnes, L. R. 6 Ch. 685; Porter v. Lopes, 7 Ch. D. 358. (q) S. 13. order to facilitate the making of partitions, it is enacted by the 20 & 21 Vict., c. 31 (r), that when a partition 20 & 21 Vict. is made, any disproportion in the value of the different c. 31. allotments in severalty may be compensated by a rent charge. (r) S. 7. CHAPTER XII. OF HUSBAND AND WIFE. It is proposed to offer a few remarks in this chapter on the mutual rights of a husband and his wife, in respect of such property in land as previously to, or during the continuance of, the coverture belongs to Common Law the wife, or is acquired by her. And we will begin by stating the Common Law on this subject, and then rights. notice the changes effected by the courts of Equity and Term of Years. by recent legislation. Commencing with a term of years belonging to the wife, we find that at law the husband has a right to receive the profits of it during their joint lives. He may also dispose of the term itself, either wholly or partially, at any time during the same period. Thus, in an old case before the House of Lords (a), a term had been assigned in trust for a married woman. Her husband died, whereby she became a single woman, or feme sole, as it is called in legal phrase. She afterwards married again, and her husband sold the term and received the purchasemoney. It was held that this was a valid disposition of it, and good as against the wife. It follows that the husband can make an under-lease of part of his wife's term. And if he survives her, he is entitled to the term in virtue of his marital right, but subject to all charges and liabilities with which it was affected whilst in her possession (b). But the husband cannot make any disposition of the term by will which will be binding upon the wife if (a) Turner's Case, 1 Ver. 7. she survives him. For, in that case, the term becomes her own property, and if he has made an under-lease out of the term, and dies before his wife, she will be entitled to any part of the original term which may exist at the time of his death, and to the rents payable by the under-lessee during his term (c). or in fee. If the wife's estate is one for life, the husband has Estate for life, a right to receive the profits of it during the joint lives of himself and his wife, the seisin of it being in them jointly; and he can impose charges on the estate, which charges will not, however, extend beyond their joint lives. Where the wife's estate is one of inheritance, she and her husband are jointly seised of it during their two lives, the husband being entitled to receive the profits of it during that time, and also for the rest of his life if he acquires an estate by curtesy, the requisites for which have been stated in our chapter on estates for life. And, in this case, any charges which he has created on the land will endure during his lifetime. The husband cannot, however, by himself dispose of his wife's estate of freehold, by either deed or will, nor will he be entitled to her estate in fee-simple if he survives her. For such an estate will, subject to his estate by curtesy (if any), belong to the heir of his wife. And if the wife survives the husband, her estate of freehold belongs to her absolutely. But the husband and wife may, during their joint lives, alienate the wife's estate of freehold, provided the alienation is made, if the land be of freehold tenure, by deed duly acknowledged by the wife (d); or, if the land be of copyhold tenure, by surrender preceded by the wife's separate examination by the steward of the manor. (c) Sym's Case, Cro. Eliz. 33. Equitable doctrine of separate use. Form of words The above-mentioned Common Law rights of the husband were never interfered with by the Court of Chancery, except where he had agreed with his wife that her property should belong to her exclusively, or where it had been given or conveyed to her with an expression of intention to that effect. But where property was conveyed, or given, or agreed to be held, for the wife's "separate use," then the Court would interfere, if necessary, in her favour. The legal estate in such property would be vested in the trustees, if any were named; if there were none appointed the husband would take the estate at law, but in Equity he would be considered a trustee of it for his wife; and he and every trustee of the property would be compelled to hold and apply it for the wife's benefit, without reference to the husband or persons claiming under him, whether as creditors or otherwise. We know that when the Judicature Acts came into operation, equitable rights were recognised in all the courts, but until very recently, a married woman could not hold a legal estate in land; that, consequently, still remained outstanding in a trustee for her. Although the gift of property to an unmarried woman for her separate use had no effect so long as she remained unmarried, yet if she married without having done anything to show that the property was not to be for her separate use, her husband's marital rights over it would be excluded (e). A woman might, moreover, in contemplation of marriage, with the consent of her intended husband, settle to her separate use any of her property which had not been expressed to be so held. No particular form of words was necessary in order create separate to vest property in a woman to her separate use, but necessary to use. (e) Tullett v. Armstrong, I Beav. 1; 4 My. & C. 377; Hawkes v. Hubback, L. R. 11, Eq. 5. |