106. A Bill concerning Partitions and Joint Rights and Obligations
Be it enacted by the General Assembly, that all joint tenants or tenants in common who now are, or hereafter shall be of any estates of inheritance in their own rights, or in the right of their wives, and all joint tenants or tenants in common who now hold, or hereafter shall hold, jointly, or in common, for term of life or years, [and joint tenants, or tenants in common, where one or some of them have, or shall have estates for term of life or years,]1 with others who have, or shall have estates of inheritance, or freehold in any lands, tenements or hereditaments, may be compelled to make partition between them, of such lands, tenements, and hereditaments, as they now hold, or hereafter shall hold, as joint tenants, or tenants in common, by writs de partitione facienda, the forms whereof shall be devised in the General Court and adapted to the cases aforesaid. But no such partitions between joint tenants, or tenants in common, who hold, or shall hold, estates for term of life or years, with others holding equal or greater estates, shall be prejudicial to any intitled to the reversions or remainders after the death of the tenants for life, or after the expiration of the years. If partition be not made between joint tenants, whether they be such as might have been compelled to make partition, or not, or of whatever kind the estates or thing holden or possessed, be the parts of those who die first, shall not accrue to the survivors, but shall descend or pass by devise and shall be subject to debts, charges, curtesy, or dower, or transmissible to executors or administrators, and be considered to every other intent and purpose, in the same manner, as if such deceased joint tenants had been tenants in common. The representatives of one jointly bound with another for payment of a debt, or for performance, or forbearance of any act, or for any other thing, and dying in the lifetime of the latter, may be charged, by virtue of such obligation, in the same manner as such representatives might have been charged if the obligors had been bound severally as well as jointly. Partition may be demanded by one and the same writ, of all the several parcels of land, or other real estate to which the parties have title, and execution thereupon done by the sheriff and jury, as heretofore, or by special commissioners to be appointed by the court, with assent of the parties by allotment to each party of part in each parcel, or of parts in one or more parcels, or of one or more individual parcels, with or without the addition of a part or parts of other parcels as shall be most for the interest of the parties in general. No plea in abatement shall be received in any suit for partition, nor shall it abate by the death of any tenant. After a writ of partition returned, affidavit being made by some credible person, that due notice of the writ had been given to the tenant or tenants to the action, and that a copy thereof had been left with him, her, or them, if he, she, or they could be found, or if not, that such notice had been given to, and copy left with the wife, son or daughter being of the age of twenty one years, or upwards, and at the usual place of abode of such as could not be found, or the person in actual possession not being the demandant of the lands whereof partition is demanded, twenty days or more before the day of return, if the tenant or tenants shall not cause an appearance to be entered, at the time by law appointed, or within one month thereafter, the demandant having filed his, or her declaration, the court may proceed to examine his or her title, and the quantity demanded, and shall give judgment, by default, for so much as he or she shall appear to them to have a right to, and award a writ to make partition, which being executed after eight days notice given to the persons mentioned before, judgment final shall thereupon be given, which shall be as binding as if it had been given after an appearance; and upon a trial, unless any tenant within one year after the first judgment, or being an infant, a married woman, of unsound mind, or out of Virginia, within one year after attainment of full age, death of the husband, recovery of understanding, or return to the country, respectively, by motion to the court, either admitting the demandant’s right and purpart, shall shew inequality in the partition, in which case the court may award a new partition to be made, and that in presence of all the parties if they choose to attend it; and the second partition shall be as binding as if the tenant had appeared and pleaded in the first instance, or else shall shew sufficient matter in bar of the partition, or that the demandant hath not title to so much as he or she hath recovered, in which case the court may suspend, or set aside the judgment, and admit the tenant to appear and plead, and the cause shall proceed as if no judgment had been given; and if upon the trial thereof the court shall give the same judgment as the first, it shall stand confirmed, and the person or persons in whose behalf the motion was made, shall be awarded to pay costs. The under sheriff, when the high sheriff cannot conveniently attend, may, in presence of two Justices of the Peace, proceed to the execution of a judgment in partition, by inquisition in due form of law, and the high sheriff shall make the same return as if he had acted in person. They who were tenants of the messuages, lands, tenements, and hereditaments, or any part thereof, before they were divided, shall hold the same of the landlords, to whom they shall be allotted by the partition in severalty, under the same conditions, rents, covenants and reservations, and the landlords shall warrant the several parts unto the tenants as they were bound to do by leases or grants, respectively: And any demandant who was tenant, in actual possession, to the tenant to the action for his purpart of the messuages, lands, tenements and hereditaments, divided by virtue of a writ of partition or any part thereof, shall hold it for the same term, and under the same conditions and covenants when it shall be allotted in severalty.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 78–9. MS (ViU); clerk’s copy. Text of Act as adopted is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 349–52.
Bill was presented by Madison on 31 Oct. 1785, postponed 14 Dec. to next session, brought up again at Oct. 1786 session, amended, and passed on 28 Nov. (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 92; same, Oct. 1786, p. 16–17, 55, 60, 65, 127). Act as adopted and Bill as proposed by Committee of Revisors agree except as noted below; Act was suspended until 1 July 1787 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 410–11).
1. The words in square brackets (supplied) are not in the Act as adopted.