Si!
l l
not be admitted.
P A R T I T I O N . B o o k X X X IX ,
Partition o f a
houfe, with a
piece of
ground.
other, and, as a compenfation, annex to it a fum in dirms, it is not
valid, unlefs they confent;— for the partnerfhip is not in dirms, and
partition is one Of the rights o f the partnerfhip. Befides, if dirms be
admitted into the tran faction, it deftroys the equality of the partition;
becaufe one of the partners gets the property, and is liable for the.
dirms which have become the right of the other; and there is a poffi-
bility that he may never pay them, by which means the other would
lofe his right.
If the partnerfhip property confift o f two things, namely a houfe,
and a piece of ground, each, according to Aboo Yoofaf, muff be divided
feparately, agreeably to its value;' for it is only by afcertaining the
value of each that an equality can be obferved in the partition. It is
recorded from Haneefa that the ground may be divided agreeably to
its meafurement, and afterwards he on whofe fhare the houfe is
fituated, or whofe fhare is the mofl eligible, muft pay a fum in dirms
to the other, fo that an equality may be effected ;— and that therefore
dirms may be introduced as auxiliaries in the divifion when
neceffity requires it. Mohammed in this cafe maintains that the per-
fon on whofe fhare the houfe is fituated mult give to the other
partner a fpace of ground equal in value to it. If, however, his fhare •
(from its containing the houfe) be flill the moft valuable, and it be im-
poffible for him to effeCt an equality for want of enough of ground
to compenfate for the value o f his houfe, he may then give dirms
equivalent to the excefs ; for as the neceffity exifts only in that degree,
the original rule of partition by meafurement mull; not in any
greater degree be abandoned. This is conformable to the opinion
delivered in the A J jil [the Mabfoot\.
Partition o f I f the partitioner fo divide the property, that the road or drain of
land where o n e runs through the fhare of the other, and no condition had been.
.there is a read . . . . . r ..
or drain, expreiied regarding this matter, the cafe then admits or two predica-
ments.— 1. It is poffible for him to turn the road or drain another
way,
C h a p . III. P A R T I T I O N .
way, fo that it pafs not through the fhare o f the other;— in which
cafe the partition is valid ;— for it is not proper that he let the road or
drain o f one man pafs through the fhare of the other; on the contrary,
it is incumbent on him to turn it another way, even though
each individual may have mutually ftipulated that they were to enjoy
their refpective ffiares “ with all the rights and immunities belonging to
V them;” becaufe the intention a t partition is to feparate and diferi-
minate the proportions of each partner; and as it is, poffible, in the
prefeut inltance, without injury to either, to effect fuch a feparation
and diferimination completely, fo as that no connexion or dependance
may remain betwixt the ffiares, this is therefore indifpenfable.— It is
otherwife with refpect to lands fold with an exprefs condition that
“ they are fold with their immunities," for here, notwithflanding the
connection or dependance which may fubfift betwixt them and the
lands of another, the intention offelling, which is to transfer the right
o f property, is neverthelefs fully accompliffied.— II. It is (or may be)
impoffible to turn the road or drain another way, fo that it pafs not
through the fhare of the other :— and this may happen under two different
circumftances:— F i r s t , where the parties have not ftipulated
to one another the enjoyment o f their ffiares “ with all the rights and
“ immunities belonging to them;— in which cafe the partition mull be
annulled, on account o f the connection and mixture of property,
which renders it inefficient, the ends of partition (namely, feparation
and diferimination) not being thoroughly accompliffied ;— the partition
muft therefore, in this inftance, be made anew, in fuch a manner,
that the road and water-drain of each may be feparate. (It is other-
wife with refpect to lands fold; for the object of a fale is to tranf-
fer the right of property, which the purchafer may fully poflefs
without being able to enjoy immediately the ufe of it, whereas the
intention of partition is that the ufe o f the property may be enjoyed,
in the fulled degree, which it cannot be unlefs a feparate road be made.)
— S e c o n d l y , where all the parties have ftipulated that they ffiall
enjoy their refpeCtive ffiares with all the rights and immunities belonging
D 2 to
g8 i