The instruments were in writing signed by the grantor and acknowledged. Revised Code of Washington, §§ 64.04.020, 64.04.030. That the grant is of a fraction which must be computed does not render the deed void when the instrument on its face makes clear how the computation may be made. Nor does the waiver of the right to partition constitute a condition rendering the deed void. See Carter v. Weowna Beach Community Corp., 71 Wn.2d 498, 429 P.2d 201 (1967). If it offends the public policy of the State of Washington, that state need not invalidate the deed. It could simply declare the restriction invalid. Richardson v. Danson, 44 Wn.2d 760, 270 P.2d 802 (1954); Fowler v. Wyman, 169 Wn. 307, 13 P.2d 501 (1932).

CUNNINGHAM, supra at 231-32 and cases cited; TIFFANY, supra, § 474 at 309-12; 37 A.L.R. 3d 962 (1971). Such a restriction on the partition right may be express or may arise by implication, such as where a purpose of the creator of the cotenancy is dependent upon the continued existence of the concurrent estates, see, e.g., Carter v. Weowna Beach Community Corp., 71 Wn.2d 498, 429 P.2d 201 (1967) (partition denied where plaintiff purchased cotenancy interest in property with full knowledge of original grantor's intended use as community park and watershed) or where the parties themselves have adjusted their rights, so as to compel such a conclusion, see, e.g., Gary v. Peckham, 468 F.2d 1241 (10th Cir. 1972) (partition sale of stallion denied where one cotenant had been granted exclusive possession for life of stallion). An example bearing some similarity to the case before us is Sartin v. Sartin, 405 So.2d 84 (Miss.

Stevens argues the trial court erred in denying him the right to partition the waterfront because his right to partition is absolute. This argument was firmly rejected by our Supreme Court in Carter v. Weowna Beach Community Corp., 71 Wn.2d 498, 429 P.2d 201 (1967). In that case, the original grantor split the first tract into 81 residential lots (Tract 1), and deeded to each residential lot owner an undivided share in a second tract (Tract 2).

Id. But, the right to partition is subject to several exceptions. Carter v. Weowna Beach Cmtv. Corp., 71 Wn.2d 498, 502, 429 P.2d 201 (1967). The right to partition

Id. But, the right to partition is subject to several exceptions. Carter v. Weowna Beach Cmty. Corp., 71 Wn.2d 498, 502, 429 P.2d 201 (1967). The right to partition

In the present case, there is no such evidence. The cases cited by Henmi, Wiener v. Pierce, 203 So.2d 598 (Miss. 1967); Carter v. Weowna Beach Community Corporation, 71 Wn.2d 498, 429 P.2d 201 (1967); American Medical International, Inc. v. Feller, 59 Cal.App.3d 1008, 131 Cal. Rptr. 270 (1976), are inapposite. In each of those cases, an express contract for a specific use of the land in question would have been frustrated if partition was allowed.

Generally, a cotenant has a right to partition in the absence of estoppel, waiver or a valid agreement to the contrary. See Carter v. Weowna Beach Community Corp., 71 Wn.2d 498, 429 P.2d 201 (1967); Reilly v. Sageser, 2 Wn. App. 6, 467 P.2d 358 (1970). If a court cannot divide the property equally, the property should be sold and the proceeds divided equally, Williamson Inv. Co. v. Williamson, 96 Wn. 529, 535, 165 P. 385 (1917), subject to the equities, with allowances for improvements and excess contributions.

[2] We believe that the Supreme Court recently modified Hamilton and inferentially adopted the common law rule permitting cotenants to waive the right to partition by agreement. See Carter v. Weowna Beach Com. Corp., 71 Wn.2d 498, 429 P.2d 201 (1967), which holds that the remedy of partition by sale is not available where a cotenant, by his own acts, is estopped or has waived his right by express or implied agreement. At page 502 the Supreme Court stated: