In the case of an estate being held in coparcenary, partition thereof was formerly sometimes made voluntarily, by the eldest parcener dividing, in which case she chose last. But by Statute 8 & 9 Vic. c. 106, s. 3, all partitions must now be by deed in order to be binding. (See Steph. Comm. Vol. I.)
46. Cujus est solum, ejus est usque ad coelum et ad inferos. Whose is the soil, his it is even to the skies and to the depths below.
Upon a conveyance of land, simpliciter, buildings, and timber being thereon will also pass, as also the mines thereunder,—“donec probeter in contrarium” (i.e., until the contrary is proved). Property, however, must be so used and enjoyed as not to injure or prejudice the rights of adjoining owners, as by overhanging buildings. (See Max. No. 254.) This maxim affords an illustration of the rule that the word land is nomen generalissimum—a most general term. (See Maxs. Nos. 188 and 224.)
47. Culpa lata dolo aequiparatur. Gross negligence is equivalent to intentional wrong.
(See Max. No. 223.)
48. Cum confitente sponte, mitius est agendum. He who willingly confesses, should be dealt with more leniently.
Confession to a crime, when committed, always operates in mitigation of punishment. Penitence for wrong-doing should not be allowed to go unrecognised.
* 49. Cum duo inter se pugnantia reperiuntur in testamento ultimum ratum est. Where two repugnant clauses (or statements) occur in a will, the latter shall prevail.
It will be remembered, however, that the intention must in all cases be looked to and if possible carried out, and the above maxim is a rule only inasmuch as its application generally will do this. Moreover, it has no reference to deeds, where, if there be two such repugnant clauses, the first is received and the latter rejected. (See Maxs. Nos. 78 and 275.)
50. Curia advisare vult. The court desires to consider.