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 CO OWNERSHIP AND PARTITION

W. R. Bisschop, LL.D.

“Nemo invicem in communione manere debet.” This maxim formed in the Civil Law the basis of a mode of acquisition of property.

If the co owners of property could not come to a mutual understanding as to its division, partition could be enforced by any one of them against all the others, and the adjudication of the judge was considered as forming for each person the proprietary title to such part as had been allotted to him. The judgment formed a similar proprietary title in the case of a division of an inheritance and in an action for the regulation of the boundaries of neighbouring lands.

The mode of procedure was clearly set out, and by the practice of centuries the rules as to these actions had been well established. The actions were duplices that is to say the parties might be called upon to act both as plaintiffs and defendants. They were mixtae as being both in rem and in personam. They were bona fidei.

With all these varieties certain rights were inherent to every co owner of property. Each owner had a right to possess his undivided share and to claim it from third parties. Each owner had the right to alienate his undivided share and to encumber it. Each owner could compel his fellow owners to cooperate in dividing the common property.

The procedure in an action for partition of property held in common was similar in all the provinces. The courts, accustomed to follow Roman law where the common law was silent or uncertain, adapted the clear rules of the civil law to the action for division of common property.

The partition of property held in common thus became an action of frequent occurrence and of paramount importance.