Definition
De partitione facienda (Latin: "for making partition") was a common law writ commanding the division of lands or tenements held jointly by two or more persons — principally coparceners, tenants in common, or joint tenants — who were unable or unwilling to partition the property by agreement. The writ issued out of the courts of common law and directed that the land be physically divided among the co-owners in proportion to their respective shares.
The writ was a predecessor remedy to the modern statutory partition action. It was directed at situations where co-ownership had become unworkable and a formal, court-supervised division was necessary to assign each owner a distinct, separately held parcel.
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Common Confusion
De partitione facienda is sometimes loosely conflated with the modern partition action or with related writs such as the writ of partition issued in chancery. The distinction matters for historical research: de partitione facienda was a common law writ with defined procedural requirements, whereas equity courts developed a parallel and eventually dominant jurisdiction over partition, particularly in cases involving complicated titles, disputed shares, or circumstances where physical division was impracticable and a sale with division of proceeds was the appropriate remedy. By the time American jurisdictions codified partition proceedings, the writ itself had become obsolete, replaced by statutory causes of action that drew on both the common law and equitable traditions.
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Why It Matters in Research
This term appears almost exclusively in historical sources and in materials discussing the pre-codification common law of co-ownership. Researchers encountering de partitione facienda in primary sources are typically working in one of two contexts: early English common law pleading materials (where the writ form is technically significant) or American colonial and early republic legal practice (where English writs were often carried over before local partition statutes were enacted).
Several traps await the unwary researcher. First, the writ's scope was limited to legal partition — the physical division of land — and did not encompass the forced sale of property and distribution of proceeds, which was a distinctly equitable remedy. Sources that treat partition generally may blur this distinction. Second, the writ applied primarily to coparceners and tenants in common; its application to joint tenants varied and was contested in certain periods. Third, because the writ was superseded by statutory partition actions in virtually every American jurisdiction during the nineteenth century, its substantive content is relevant chiefly as background for understanding the origins of those statutes and the scope of the rights they codified.
Researchers tracing the development of modern partition law — including forced sale partition, which remains heavily litigated — should treat de partitione facienda as an entry point into the common law foundation, then follow the statutory and equitable lines forward. The corpus connections run to co-tenancy doctrine, coparcenary (which survives in reduced form), and the law of concurrent estates generally.
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Historical Dictionary Support
Both Black's Law Dictionary and Black's Law Dictionary (2nd edition) offer identical, compressed definitions: a writ lying to make partition of lands or tenements held by several as coparceners, tenants in common, etc., citing Reg. Orig. 76, Fitzh. Nat. Brev. 61, R, and Old Nat. Brev. 142. The definitions agree entirely and offer no divergence worth noting — both treat the writ as a straightforward procedural mechanism without elaboration on its limits, procedure, or decline.
What the historical dictionaries do not address is significant. Neither entry explains the writ's relationship to equity jurisdiction over partition, nor the circumstances under which chancery supplanted the common law writ as the primary forum. Neither addresses the writ's procedural mechanics — how it issued, how partition commissioners were appointed, or how the division was confirmed — information that researchers working with historical pleading records will need to source elsewhere, principally in Fitzherbert's Natura Brevium and Blackstone's Commentaries. The brevity of the dictionary entries accurately reflects the writ's status as an obsolete procedural form by the time Black's first edition was compiled, but it leaves substantive gaps for anyone doing more than confirming the term's basic meaning.
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Jurisdictional Note
De partitione facienda was an English common law writ and had no independent existence in civil law jurisdictions. American states that inherited the common law writ form replaced it with partition statutes at varying points in the nineteenth century; Louisiana, following civil law traditions, developed partition through a distinct doctrinal lineage. Researchers working in jurisdictions with mixed legal heritage should not assume the writ's common law framework maps cleanly onto local partition doctrine.
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