The language of the law. Part Latin, part Anglo-Saxon, all confusing.
This is going to be a very busy week here at The Legal Genealogist, as the spring conference season is in full swing and there’s a lot of preparation going on.
So in honor of this weekend’s Spring Seminar of the Root Cellar Sacramento Genealogical Society, let’s take a look back1 at a couple of terms that we may need to know as genealogists … and that came up in a very interesting California court case.
The terms: moiety and partition.
A “moiety” in law generally refers to a one-half interest in real estate.2 An entirety in real estate, by contrast, means the whole parcel.3 But the term “moiety” is broader than just a half-interest. The definition of “moiety” notes by way of example that joint tenants — two or more persons who own land by a joint title4 — are “said to hold by moieties.” Used this way, the term refers to any set of roughly equal parts.
Whenever there’s a moiety (or, for that matter, any joint or common ownership) of land, there’s also a good chance that there will someday be an action for partition. That’s because a moiety in real estate only creates a right to roughly equal shares, and joint and common ownership gives all owners some rights to the land, but none of these ownership forms answers the question of who, ultimately, gets what part of the land.
And that, in a nutshell, is what partition does. (And yeah, like much else in the law, it has other names: try actio communi dividundo5 on for size. Legal Latin also has a specific term for an action for partition based on an inheritance: actio familiae erciscundae.6 A writ of partition is sometimes called a de partitione facienda.7)
The definition of partition is, simply, the division of lands held jointly or in common by multiple owners into distinct portions, so that each takes sole ownership of a separate part.8 Usually, the party who wanted the land divided would file an action for partition. If the court granted it, it would issue a judgment, called a judgment quod partitio fiat,9 ordering the partition to occur. The actual division — deciding who gets what — was often done by a group appointed just for that purpose, called a commission of partition.10 In older records, those folks might be referred to as extensores.11 If the proposed division was accepted and approved by the court, one or more deeds of partition12 would be entered, giving each landowner single title to his or her part of the land.
For a GREAT example of partition, the California Supreme Court case of Emeric v. Alvarado, 64 Cal. 659, 2 P. 418 (Cal. 1884),13 is a wonderful read. It’s a decision on an action to partition a ranch of nearly 18,000 acres known as San Pablo in Contra Costa County. The opinion itself is an amazing history lesson: all about land grants in early California (the family patriarch, Francisco Maria Castro, applied for his grant in April 1823) and all about how land inheritance worked under the Mexican and Spanish laws in effect at the time.
The unofficial description of the case in one legal research system is classic: “The action was for the partition of the ‘Rancho San Pablo,’ being seventeen thousand nine hundred and thirty-eight and fifty-nine one-hundredths acres of land in the county of Contra Costa. The defendants were several hundred in number, and comprised many minors. The action was commenced in November, 1867. The interlocutory judgment was rendered on the 15th day of July, 1878. During the pendency of the action a large number of minors were made defendants as successors in interest of original defendants. Five appeals were taken, two from the interlocutory decree, one from an order denying a new trial, and two from an order appointing a receiver. The appeals were all considered and decided together.”14
Now think about that for a minute. The case began in 1867. An interim judgment — that’s what interlocutory means15 — was handed down in 1878. That’s 11 years later. And this appeal wasn’t decided until 1884. Another six years.
So it’s an interesting look in how far people are willing to go when there’s a lot of money (or land) at stake, and that’s fascinating for anyone who’s interested in the law — or in what families do.
And this case is even better if if you happen to be a member of or connected to this particular family…
If you’re a descendant of Francisco Maria Castro or researching any part of this family, the opinion names his wife (maiden name included), all 11 of their children, the spouses of three daughters, six grandchildren (and the spouse of one granddaughter), and two great granddaughters (and the surnames of their spouses). And it gives the full names of 31 minors, with six surnames, with interests in the estate based on their ancestors for more research.
And you thought court records were dull…
- This post reprises in part two much earlier posts. See Judy G. Russell, “Moiety,” The Legal Genealogist, posted 2 Jan 2012 (https://www.legalgenealogist.com/blog : accessed 1 May 2017), and ibid., “Partition and Emeric v. Alvarado,” posted 3 Jan 2012. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 784, “moiety.” See also John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States…, rev. 6th ed. (Philadelphia: Childs & Peterson, 1856), II: 181, “moiety.” ↩
- Black, A Dictionary of Law, 423, “entirety.” ↩
- Ibid., 651, “joint tenants.” ↩
- Ibid., 23, “actio communi dividundo.” ↩
- Ibid., 24, “actio familiae erciscundae.” ↩
- Ibid., 330, “de partitione facienda.” ↩
- Ibid., 873, “partition.” ↩
- See Ibid., 655, “judgment,” subentry for “judgment quod partitio fiat.” ↩
- Ibid., 24, “commission of partition.” ↩
- Ibid., 464, “extensores.” ↩
- Ibid., 873, “partition, deed of.” ↩
- Court case citations are to the volume of a reporter and then to a page. So 64 Cal. 659 is to page 659 of volume 64 of the official California Reports, the official reporter for California Supreme Court cases. The second reporter cited (2 P. 418) is an unofficial regional reporter (volume 2 of the Pacific Reporter, published by West), and it’s available for free online at Google Books. ↩
- Prior History, Emeric v. Alvarado, 1884 Cal. LEXIS 419 (Cal. 1884). This is an unofficial description of the case. ↩
- Black, A Dictionary of Law, 637, “interlocutory.” ↩
- Emeric v. Alvarado, 90 Cal. 444 (1891), ↩
- Emeric v. Alvarado, 106 Cal. 646 (1895). ↩