ner, mu ft Be divided equally betwixt them; and that the firft partner
forfeits to his co-partner one half of the price for which he fold a
.part of his lhare; for (agreeably to his tenets) the original partition
is invalid ; and as an article of which a perfon obtains poffeffion by an
invalid deed becomes his property, he may lawfully difpofe of it by
fale : but he is refponfible for the value of i t ; and hence, in the cafe
in queftion, the firft partner is refponfible for the value of an half o f
what he has fold, as that is a moiety of the other’s half.
Adebtproved IF the eftate of a deceafed perfon be divided amongft the heirs,
againft an _ 1 ° 9
eftate, annuls and afterwards a debt be proved againft the eftate equal to the whole,
efltPamongn t^le Partiti011 muft be annulled, becaufe the debt prevents the eftate
the heirs, fr0m being the property of the h e i r s a n d the fame rule holds where
the debt is not equal, becaufe the right of the creditor attaches equally
to the whole fortune of the deceafed. The partition muft therefore
be annulled, unlefs there be left after it a fum fufficient to difeharge
the debt, in which cafe it is not annulled, fince the annulment of it
is not neceflary for the difeharge of the debt.
unlefs the ere- If the creditor, after the partition, remit the debt, or i f the heirs
or themin'’ difeharge the debt from their own fortunes, the partition remains
difeharge it. vaHd, whether the debt be equal to the eftate or exceed it, the obftacle
to its validity being thus removed.
An heir may If one of the heirs prefer a claim of debt againft the deceafed,
Eponaneftate after the partition o f the heriditaments, his claim is admiffible; for
after pani- H this cafe there is no contradiction, fince the debt relates to the
tion. . .
fpvrit or valuei and not to the fubjlance o f the particular heredita-
ments, and it was in the fuBJlance of the hereditaments that the parti-
I tion took place.
A claim can- If a part of the heirs, after partition, prefer a claim for a partisan*
heir,Up’ cular thing, included in the eftate, on whatever ground the claim be
built,
built, it cannot be admitted, on account of the contradiction, which Is *EhEartide"
here evident, as their acquiefcence in the partition implies an acknow- after diftri,-
ledgment in them that that particular thing, which has been divided,
was a part of the co-parcenary.
CHAP. V.
Of the Laws of Mahayaf.
M a h a y a t , in the language of the l a w , fignifies, the partition o f Mahiyat Is a
iifufrudi ; and it is allowed; becaufe it is frequently impoflible for all °f
the partners toenjoy together, and at one time, the ufe of the, thincr held u^ rua’
in partnerfhip. Mahayat, therefore, refembles the partition o f property
(whence it is that the Kdzee may enforce it in the fame manner,)—
with this difference, however, that in the partition o f property
each partner enjoys the ufe of his refpeftive lhare at the fame time,,
whereas in the partition of ufufruct each mod frequently enjoys the
ufe o fjh e thing held in partnerfhip only when it comes to his turn,
by rotation. Partition of property is therefore more effectual than
partition o f ufufrutl in accomplifhing the enjoyment of the ufe • for
which reafon, i f one partner apply for a partition of property, and another
for a partition of ufufruct, the Kdzee muft grant the requeft o f
the former; and i f a partition o f ufufrudt fhould have taken place;
with refpect to a thing capable of a partition of property, (fuch as a
-houfe or a piece of ground,) and afterwards one of the partners apply
for a partition of property, the Kdzee muft grant a partition o f property
and annul the partition o f ufufrudt
I A FARTtTIONS