parties, as is now the general practice, no entry is necessary, for the statute of uses executes the possession; and all incidents annexed to an exchange at common law will be preserved. (a)

The word excambium or exchange must be used, and it cannot be supplied by any other word, or described by any circumlocution. (b)

In every exchange, the word excambium implies in itself tacitè a condition, and also a warranty; the one to give a re-entry, and the other a voucher and recompense; and all in respect of the reciprocal consideration, the one land being given in exchange for the other. But it is a special warranty: for upon the voucher by force of it, he shall not recover other land in value, but that only which was by him given in exchange. For, inasmuch as the mutual consideration is the cause of the warranty, it extends only to lands reciprocally given, and not to other lands. And this warranty runs only in privity, for none can vouch by force of it, but the parties to the exchange or their heirs, and no assignee. If A. gives in exchange three acres to B. for other three acres, and afterwards one acre is evicted from B., in that case the whole exchange is defeated, and B. may enter into all his land; for although the exchange had been good, if A. had given but two acres, or but one acre, or less, yet, forasmuch as all the three acres were given in exchange for the others, and the condition which was implied in the exchange was entire, upon eviction of one acre, the condition in law was broken, and therefore an entry was given on the whole. As, when the whole estate in part was evicted, the exchange was defeated; so, when an estate of freehold for life, which was but parcel of the estate, was evicted, the exchange was defeated. (c)

the

But as well conveyances requiring livery, as con

(a) 4 Cruise's Dig. 80, 81, 82.

(b) Ib.

(c) Ib. 381, 382.

veyances requiring an entry, have fallen into disuse. They have been superseded by the modern lease and release. Exchanges are now commonly effected by mutual conveyances, adapted to pass the land without entry. Such conveyances are valid without any of the requisites of a common law exchange; for property of any given kind may be bartered for property of the same, or any other kind, and the bargain may be completed by adopting the modes of assurance suitable to the transfer of the respective properties; but unless the relative condition of the parties, and the subject matter, would have admitted of an exchange at the common law, the incidents of such an exchange cannot belong to the

transaction.

The doctrine of the law of England is followed in those British Colonies which are not governed by the laws of the respective powers to whom they previously belonged, as well as in the United States.

In Scotland, the principles of the civil law are adopted in relation to this contract. (a)

(a) Stair, b. 1, tit. 14, § 1, and b. 2, tit. 3, § 50.

SECTION II.

PARTITION.

Right of co-proprietors to a partition.-How far it may be controlled by agreement.-Effected by private agreement when the parties are competent and willing.-If not, by suit.-Actions de familiá erciscundá, and de communi dividundo under the civil law. The partition by licitation.-In what cases permitted. When strangers are admitted.-The codes of Holland, Spain, and France; the coutumes of Paris and Normandy.— During the pendency of the suit alienation restrained.-To whom muniments of title delivered.-Rescinding the partition.-And on what grounds. Eviction and extent of indemnity.-Effect of the partition as to the coproprietors and their creditors, under the civil law and the codes of Holland and Spain.-Different effects under the former law of France and the Code Civil.-Partition by the law of England.-Scotland.-Colonies.— United States.

THE person to whom real property belongs in common with another, "qui rem pro indiviso communem habent," whether they have acquired it by succession, gift, purchase, or any other title, may compel a partition. It is not material whether his dominium be directum or utile, or whether one or more, or all the joint owners be, or be not, in possession of the property. (a) "Nihil autem interest, cum societate, an sine societate res inter aliquos communis sit: nam utroque casu locus est communi dividundo judicio. Cum societate res communis est, veluti inter eos, qui pariter eandem rem emerunt: sine societate communis est, veluti inter eos, quibus eadem res testamento legata est." (b)

It was the maxim of the civil law, adopted by all the codes which are here considered, that, "in communione vel societate, nemo compellitur invitus detineri.” (c) Hence all agreements by which a partition is prohibited

(a) Dig. lib. 10, tit. 3, 1. 2. Vente, part 7, art. 6, n. 634. (b) Dig. lib. 10, tit. 3, 1. 2.

Voet, lib. 10, tit. 2, n. 12. Pothier, Tr. du Code Civil, art. 815.

(c) Cod. lib. 3, tit. 37, 1. 5.

were void: "Si conveniat ne omnino divisio fiat hujusmodi pactum nullas vires habere, manifestissimum est." (a)

Such a prohibition was also void, if it were imposed by a testator. It was competent, however, for the joint owners to stipulate, or for a testator to direct, that no partition should take place for a certain period. (b)

It would seem that the same rule, with its qualification, is adopted by the law of England (c) and Scotland. (d)

The Code Civil, in adopting the rule, limits the period during which the partition might by agreement be suspended to five years. (e)

When the co-proprietors are desirous of having the common property divided, and the share of each allotted to them in severalty, and neither of them labours under the incapacity of minority, interdict or insanity, the partition may be made amongst themselves, without any judicial process.

But if either of them be unwilling, or incompetent from any of these causes, to make an amicable partition, the civil law provided for the division of a succession amongst the co-heirs the action de familiâ erciscundâ, and that of de communi dividundo for the partition of property held in common under any other title. (f)

The first of these remedies is competent, whether the succession be derived ex testamento, or ab intestato, and whether either of the parties claim by representation

(a) Dig. lib. 10, tit. 3, l. 14, § 2; lib. 17, tit. 2, 1. 70, pro Socio. Voet, lib. 10, tit. 2, n. 32.

(b) Perez. ad Cod. lib. 3, tit. 37, n. 6. Dig. lib. 10, tit. 3, 1. 14; lib. 17, tit. 2, 1. 70, and 1. 1. Jul. Clarus, § Testamentum, quæs. 67. Boerius, dec. 87. A. Gaill, lib. 2, observ. 139. ult. Tulden, in Cod. lib. 3, tit. 37, n. 2. Peregrinus, de Fidei-commis. art. 11, n. 80. Hugo Grotius, Manud. ad Jurisp. Holl. lib. 2, c. 21, n. 19.

(c) Agar v. Fairfax, 17 Ves. 533.

(d) 1 Bell's Comm. 64.

(e) Art. 815.

(ƒ) Voet, lib. 10, tit. 2, 3. Vinn. Sel. Quæst. lib. 1, c. 35, 36. Voet, Tr. de Fam. Ercis.

from a deceased coheir, or has purchased the interest of an undivided share of the succession, and notwithstanding neither of the co-proprietors should be in possession. (a)

But the person who is instituted heir sub conditione has not the present interest which entitles him to prosecute this remedy, although the partition might take place amongst those whose right is unconditional, with a salvo jure of him whose right is yet contingent. (b) The partition, although effected by this action, is treated as an alienation. Hence, not only minors, and those labouring under an incapacity, but their tutors or curators, are prevented from prosecuting it, unless the previous authority of the court has been obtained. But the adult joint owner may prosecute it against them. (c)

The husband who is precluded from alienating the wife's immoveable property without her consent, cannot prosecute this action of partition. (d)

If every separate subject will not admit of being divided, each of the co-proprietors should have a specific subject allotted to him, and the equality of the partition should be effected by adjudging the one who receives that which is of greater value than the share allotted to his co-proprietor to pay to the latter the difference in money. (e)

But if the subject do not admit of being divided without injury, "si divisio sine cujusquam injuriâ non potest fieri."-" Cum autem regionibus dividi commodè

Sande, Decis. Fris. lib. 2, tit. 9, def. 21, et de Prohib. Alien. part 1, c. 1, § 3, n. 31, 32. Menoch. de Arbitrar. Judic. lib. 2, cas. 171, n. 34, et seq. Montanus, de Tutel. c. 33, n. 189, et seq.

(d) Rodenb. tit. 2, c. 3, n. 8.

(e) Van Leeuwen, Cens. For. p. 1, lib. 4, c. 27, n. 5. Fab. ad Cod. lib. 3, tit. 25, def. 2. Sande, Decis. lib. 4, tit. 11, def. 4. Christ. ad Leg. Mechl. Someren, de Jure Noverc. c. 7, § 1, n. 11. Voet, lib. 10,

tit. 16, art. 44. tit. 2, n. 22.