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Of a Writ of Partition, Nuper o∣bijt, and a Quo iure.
THis is the nature of an assise, and Iuris vtrum. Those that follow are either a Partitione facienda, & nu∣per obijt, (which both lye betweene priuies in bloud) or a Quo Iure.
A Particione facienda lyeth betweene co∣percenors to compell particion to be made, * 1.1 but not betweene Ioyntenants, or Tenants in Common, yet partition made there by * 1.2 assent betweene them is very good, but the
husband of one of the coapareeners com∣ming to be Tenant by curtesie, such a Writ lyeth for the other Copercener against him because hee commeth in of the state of his wife; but not for him, against the other. Therefore here for equalitie of partition, things that otherwise cannot may be gran∣ted * 1.3 without deed: As a rent, reuertion, seig∣niorie, way, auowson, composition to pre∣sent by turne, &c.
31. H. 8. cap. 1. Ioyntenants, or Tenans in Common of an estate of inheritance, may be compelled to make partition, and after∣wards shall haue aide to deraigne the war∣rantie paramount, and to recouer for the rate as coperceners (after partition) should.
32. H. 8. cap. 32. Ioyntenants, or Te∣nants in Common for life or yeares, or where one or many hold for life or yeares with another that hath the inheritance, may be compelled to make partition. Such partition shall bee preiudiciall to none but the parties, their Executours and As∣signes.
Nuper obijt lyeth against one priuie in * 1.4 bloud, that entreth after the death of the auncestor that dyed seised in demesne. And therefore beeing but to trie the
priuitie of bloud, view, nor voucher, lyeth not, neither is non tenure any plea.
A Quo iure lyeth for the tenant of the * 1.5 land when one challengeth common, there to trie whether in right hee ought to haue any or no.
Lit. 53, 65, 72.
Lit. 98. 5. E. 3. parti••. 11.
2. H. 7. 5. 11 H. 4. 3. 28 H. 6. 2. 21 E. 3. 7. 28 H. 8. Dy. 29.
F. N. B. 197.
F. N. B. 128.