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second part; and D. B., of, &c., spinster, of the third PRECEDENT XV. part:
FOR A PARTITION
that three persons named shall be
1. E. F., of, &c., G. H., of, &c., and I. K., of, &c., BY MUTUAL CONshall be commissioners for the purpose of making a partition of all the freehold and copyhold tenements and hereditaments, of or to which the said A. B., C. B., and D. B. are seised or entitled at law or in equity as coheiresses of their late father, E. B., deceased, and shall make the said partition in the following manner (that is to say):
make a partition.
a survey and
2. The commissioners shall forthwith make or obtain 3. Commissioners to make a proper survey, and correct maps, plans, and schedules of the said hereditaments, specifying the different maps, &c natures and tenures and quantities thereof respectively, the rental of such of them as are let, the estimated annual value of such of them (if any) as are in hand, and the several outgoings from the same respectively, and also all other particulars and circumstances which, in their judgment shall be material in estimating the value of the said hereditaments.
4.—and value and apportion
sioners may direct money to be paid for equality of partition.
3. The commissioners shall, immediately after the said survey, maps, plans, and schedules shall have been completed, make a fair valuation of all the said hereditaments and of the timber thereon, and shall divide the said hereditaments into three parts, convenient to be held in severalty, and as nearly as possible of equal values, and if necessary shall direct the parties respectively, or any of them, to pay and receive money for equality of partition. 4. When the said parts shall have been apportioned 5. Coparceners and set out as aforesaid, and the money (if any) to be paid for equality of partition shall have been determined, the parties hereto shall draw lots for priority of choice of the said parts, and shall choose their parts within seven days after they shall respectively become entitled to exercise their choice, and immediately after the said Proper conseveral parts shall have been appropriated as aforesaid, executed. all necessary parties shall convey, surrender, and assure the entirety of the said parts to the persons to whom
to cast lots for choice.
veyances to be
FOR A PARTITION
PRECEDENT XV. they shall have been respectively appropriated in severalty, the execution of such conveyances, surrenders, BY MUTUAL CON- and assurances the money (if any) which shall be payable for equality of partition, shall be paid; and the same shall, until paid, be a charge on the respective portions by the respective owners of which it ought to be paid.
Equality money to be paid before execution of con
6. covenants for title to be entered into. Provision for custody of title deeds;
7.—of agreement and deed of partition.
8. Costs to be paid by the par. ties in equal shares.
9. Provision for
a difference of opinion between the commissioners.
Appointment of umpire by lot.
5. The parties to such conveyances and assurances shall enter into such covenants for title as are usual in conveyances on sales; SUCH one of the parties hereto as shall obtain the first choice of parts shall be entitled to the custody of all the muniments of title relating wholly or partially to more than one of the said parts, and shall at her own expense enter into usual covenants with the owners of the remainder of the hereditaments to which such muniments relate, for the production and furnishing copies of the said muniments.
6. One part of these presents shall be retained by each of them the parties hereto, and the principal deed of conveyance or partition shall be prepared and executed by all parties in triplicate, and each of the parties hereto shall be entitled to one part thereof.
7. The costs and expenses incurred in, or attendant upon, or incident to the making and perfecting of the present agreement and proposed partition shall be borne and paid by the parties hereto in equal shares.
8. In case the commissioners shall differ in opinion on any of the matters herein before referred to them, and any two of them shall be of the same opinion on such matter, then the opinion of those two shall be conclusive as to such matter; but if each of the commissioners shall be of a different opinion on the matter in dispute, then the same shall be referred to such umpire as they or any two of them shall select, or in case no two of them shall agree in selecting an umpire, then to an umpire to be selected by lot (a), and the decision of such umpire shall be conclusive as to such matter.
(a) Arbitrators cannot appoint an umpire by lot unless they are specially empowered so to do: Harris v. Mitchell, 2 Vern. 485; Wells
FOR A PARTITION
10. Provision for
9. If the said E. F., or any commissioner appointed in PRECEDENT XV. his place as hereinafter is mentioned, shall die, or decline, or become incapable to act as such commissioner, the BY MUTUAL CONsaid A. B. shall forthwith appoint some other person to be a commissioner in his stead [Add similar clauses for the appointment C. B. to appoint in the stead of G. H., and for D. B. to of new commisappoint in the stead of I. K.]; and every new commissioner appointed as aforesaid, shall have the same powers as if he had been originally named a commissioner in these presents. IN WITNESS, &c.
AGREEMENT to make a PARTITION and to apply to the PRECEDENT XVI. INCLOSURE COMMISSIONERS to give Effect thereto (a).
FOR A PARTITION
BY INCLOSURE COMMISSIONERS.
AN AGREEMENT made, &c., between A. B., of, &c.,
v. Cooke, 2 B. & Ald. 218. The appointment of the umpire must be the act of the will and judgment of the arbitrators, must be matter of choice and not of chance, unless the parties consent to or acquiesce in some other mode: In re Cassell, 9 B. & C. 624; S. C., 4 M. & R. 555; Ford v. Jones, 3 B. & Ad. 248. But if the parties acquiesce in the appointment by lot of an umpire, either by the original reference, or by subsequent acts, such an appointment is good: In re Tunno v. Bird, 5 B. & Ad. 488; S. C., 2 N. & M. 288; James v. Attwood, 7 Scott, 841; Backhouse v. Taylor, 20 L. J., Q. B., 233; Wilson v. Blythe, &c., Rail. Co. 2 N. R. 182; but the assent of the parties to such an appointment must be given with a full knowledge of the circumstances: Wells v. Cooke, 2 B. & Ald. 218; Re Greenwood & Titterington, 9 A. & E. 699. As to the appointment of umpires and their powers, see Russell on Arbitrators, Part 2, ch. 4, s. 4.
(a) The Act 11 & 12 Vict. c. 99, ss. 13, 14, extends to partitions Partitions by the provisions of the Acts 8 & 9 Vict. c. 118, 9 & 10 Vict. c. 70, and Inclosure Com10 & 11 Vict. c. 111, referred to in a previous note (suprà, p. 65, n. (a)) respecting exchanges, and enacts that the land allotted in severalty
PRECEDENT XVI. WHEREAS, under the will of the late of
FOR A PARTITION
BY INCLOSURE COMMISSIONERS.
2. Recital that
A. B. is tenant in
tail in possession
of one moiety of estate to be parted,
-and that C. D.
Land held under
separate titles by
the same person may be partitioned.
Owelty of partition how provided for.
Tenants for life empowered to make application for partition.
dated, &c., the said A. B. is tenant for his life in possession of one undivided moiety of the hereditaments in the parishes of, in the county of, described in the schedule hereto, with remainder to his first and other sons in tail male, with remainder to the right heirs of the said [testator] (b); AND WHEREAS the said C. D. is seised in fee
upon every partition made by the Inclosure Commissioners in respect of each undivided part or share shall be and enure for and upon the same uses, trusts, intents, and purposes, and subject to the same conditions, charges, and incumbrances as the undivided part or share in respect whereof the same shall be allotted would have stood limited or been subject to in case the order of partition had not been made. And the Acts 12 & 13 Vict. c. 83 and subsequent Acts (see suprà, p. 69, n.), are incorporated with this Act.
The 15 & 16 Vict. c. 79, provides, by sect. 31, that any person interested in any land or other subject-matter of partition in undivided shares held under separate titles, or for distinct and separate interests, or subject to separate charges or incumbrances, may effect a partition of the same in such and the same manner as if different persons had been interested therein. And by sect. 32, persons interested in any undivided shares of any land, and also interested in the entirety of any land, who shall desire at one and the same time to effect a partition and exchange thereof, may agree between themselves to effect a partition and exchange in such manner and in such proportions as they shall think fit; and if the commissioners shall on inquiry be satisfied that the arrangement will be beneficial to the owners of the land, they may make an order of partition and exchange, under which so much of the land as shall be awarded under the partition shall be and enure to the same uses as the undivided share of the party would have stood limited to if the order had not been made; and so much of the land as shall be awarded by way of exchange shall be and enure to the same uses as the land given in exchange would have stood limited to if the order had not been made.
Differences in the value of the allotments on partition not exceeding an eighth of the actual value may be compensated under the 20 & 21 Vict. c. 31, by means of perpetual yearly rent-charges on the whole or a sufficient part of the lots of greater value.
(b) Tenants for life in possession are within the terms of the 8 & 9 Vict. c. 118, s. 16, and are empowered to apply to the Inclosure Commissioners for orders of partition, without obtaining the concurrence of or even giving notice of their application to the remaindermen; who, however, may, if they please, dissent from the proposed
simple in possession of the other undivided moiety of the same hereditaments: NOW THESE PRESENTS WITNESS, that, for the purpose of making a partition of the said hereditaments, it is hereby agreed as follows:
1. On or before the - day of next, a partition of the said hereditaments described in the said schedule, and of all other (if any) the hereditaments in the said parishes belonging in undivided moieties to the said A. B. and C. D., into two separate allotments, as nearly as possible of equal value, shall be made by G. H., of, &c., land surveyor.
Shares to be
to the Inclosure
2. As soon as such partition shall have been made, the 4.-allotments to said A. B. and C. D. shall, under the direction of the said G. H., draw lots for choice of the said allotments, and thereupon shall forthwith apply to the Inclosure assured in Commissioners for England and Wales, and endeavour to severalty, and obtain an order of partition under the seal of the said application made commissioners for the purpose of limiting and assuring, Commissioners. under the powers and authority of "The Acts for the Inclosure, Exchange, and Improvement of Lands" (c), such of the said allotments as shall have been chosen by, or shall have fallen to the said A. B., to the uses, upon the trusts, and with and subject to the powers, provisoes, and declarations to, upon, with, and subject to which the undivided moiety devised by the said will of the said [testator], of and in the said hereditaments, are now and ought henceforth to be held by virtue of the said will, and for the purpose of vesting the other of the said allotments in the said C. D., his heirs and assigns.
3. The said G. H. shall make a survey and map of the 5. Commissioner said estates.
4. The costs and expenses of and incidental to the making and perfecting of this agreement, and the said partition (except the expenses of the respective parties
partition: see suprà, p. 70, n. The limitations of the estate to be parted are mentioned in the agreement, merely to show the limitations to which the land received in severalty by the tenant for life will be subject.
(c) See supra, p. 74, n. (d).
to make survey and plan.
6. Costs (except certain parts) to be paid in equal proportions.