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a. Partition of part of premises.-In partition cases, where two or more of the parties interested desire to have their shares set off to them, to be enjoyed in common, an order of reference will be made for that purpose (Laws of 1847, p. 557, § 4; Haywood v. Judson, 4 Barb. 228; Me Whorter v. Gibson, 2 Wend. 443). The statute contemplates that the provisions for setting apart the shares of those who desire to remain without partition, shall be made before the final decree is made (Northrup v. Anderson, 8 How. 351).

b. Parties.-No decree can be made unless all the tenants in common are before the court (Burhans v. Burhans, 2 Barb. Ch. R. 398, 407; Braker v. Devereaux, 8 Paige, 513); any person having an interest, or entitled to dower, in the premises, may be made a party; but it is not necessary, though in most cases it is advisable to make persons parties who are entitled only to dower in the premises, which has not been admeasured, and which extends to the whole of the premises of which partition is sought (Tanner v. Niles, 1 Barb. 560; see, however, Ripple v. Gilburn, 8 How. 456; Brownson v. Gifford, id. 389); as to making the wife of defendant a party (see Green v. Putnam, 1 Barb. 500, 506; Matthews v. Matthews, 1 Edw. Ch. R. 565); and as to making a doweress a party (Bradshaw v. Callaghan, 5 Johns. 80; approved in error, 8 id. 558; Coles v. Coles, 15 Johns. 319; Green v. Putnam, 1 Barb. 500; Tanner v. Niles, id. 560; Wood v. Clute, 1 Sand. Ch. R. 199). On a bill filed by assignees of a tenant for life, the creditors at large of such life-tenant are not necessary parties (Van Arsdale v. Drake, 2 Barb. 599); nor it is necessary in any case to join as parties, incumbrancers (Wotten v. Copeland, 7 Johns. Ch. R. 140; Sebring v. Mersereau, 9 Cow. 344; Harwood v. Kirby, 1 Paige, 469); or reversioners (Striker v. Mott, 2 Paige, 387); or lien holders (Bogardus v. Parker, 7 How. 305; Van Arsdale v. Drake, 2 Barb. 599; Vanderwerker v. Vanderwerker, 7 Barb. 221); or the legal owners of a trust estate (Braker v. Devereaux, 8 Paige, 513). If a male defendant marry pendente lite, and after a notice of lis pendens filed, must his wife be brought in as a defendant to bar her contingent right of dower? (Jackson v. Edwards, 7 Paige, 387, 403).

c. In a suit between tenants in common for the partition of an interest in real estate, which has been carved out of the fee, the owner of the fee, who is the common source of title to all the tenants in common, is not a necessary party (Canfield v. Ford, 28 Barb. 336).

d. Infant plaintiff.—An action for partition may be instituted on behalf of an infant (Laws 1852, p. 411) but only on an order of the court (Clark v. Clark, 14 Abb. 299; 21 How. 479; Lansing v. Gulick, 26 How. 250). Before making an order for the instituting such a suit, the court will refer it to a referee to report whether such an action would be proper, and the facts. A report of the referee that, in his "opinion it would be proper to allow said infant to prosecute an action for the partition or sale of the real estate mentioned in the petition," is not sufficient to warrant the court in ordering proceedings in such an action. Under the statute, the facts which warrant such a conclusion, should be set forth in the report (Re Marsac, 15 How. 483). e. Unknown owners.-In the case of "unknown owners " of any portion of the property, the fact that such owners are unknown must be alleged in the complaint, and there must be a notice by publication as to them (2 R. S. 319, § 12; id. 330; § 84; Hyatt v. Pugsley, 23 Barb. 303; Allen v. Allen, 11 How. 277). An averment in a complaint that there are certain unknown owners," although their exact interests are not specified, may be sufficient to authorize the subsequent proceedings as to them (23 Barb. 303). No steps can be taken against unknown owners until the statute notice has been given (Denning v. Corwin, 11 Wend. 648; see Rogers v. McLean, 31 Barb. 307).


f. Complaint. The provisions of the code apply to pleadings in actions for partition (Jennings v. Jennings, 2 Abb. 14). It is not necessary to aver in the complaint that the plaintiffs are in possession, if it be averred that the parties "are seized in common." Such an averment implies possession. If the plaintiffs are not in possession, that may be set up as a defense

(Jenkins v. Van Schaack, 3 Paige, 245). The complaint should correctly state the interests and shares of the parties, but no error in this respect will render the decree irregular (Noble v. Cromwell, 26 Barb. 475; 6 Abb. 59). So the complaint should properly allege that there are no other parties in interest, or incumbrancers, than those joined or mentioned therein, but an omission in this respect does not affect the regularity of the decree (id.) It is sufficient for the complaint to state in general terms that such tenant was seized of his part in fee, or as the case may be, whether such seizin be acquired by descent or purchase (Bradshaw v. Callaghan, 8 Johns. 558). The complaint may allege, in addition to what is necessary to obtain a partition, that one of the defendants claims a lien on the premises, and ask to have an account of such lien; such a complaint will not be objectionable on the ground that several causes of action are improperly joined (Bogardus v. Parker, 7 How. 305). If an account of rents is required, it should be asked for in the complaint (Bullwinker v. Ryker, 12 Abb. 311).

a. Notice of pendency of action.—See ante, § 132, note thereto. The notice of lis pendens is ineffectual until the complaint is filed. It may be filed before or with the complaint, but takes effect only as of the time the complaint is filed. If an amendment by adding parties is made, a new notice to affect such parties should be filed; but if such parties are afterward struck out, and nothing is claimed by or against them, no new notice of lis pendens is necessary (Waring v. Waring, 7 Abb. 472).

b. Infant feme covert defendant.-An infant defendant who is a married woman may appear voluntarily in an action for partition, and it is not necessary that her husband should join with her (Disbrow v. Folger, 5 Abb. 54).

c. Infant or idiot defendant, guardian for.-See ante, § 116. A general guardian cannot act for an infant or idiot defendant; there must be a guardian ad litem appointed (Re Stratton, 1 Johns. 509; Re Sharpe, 10 id. 486; Clark v. Clark, 14 Abb. 299; 21 How. 479; Lansing v. Gulick, 26 How. 253). The guardian is not appointed in the same manner as in other actions. He can be appointed by the court only, and the appointment of a guardian ad litem for an infant by a county judge in an action for partition is a nullity (Lyle v. Smith, 13 How. 105; Varian v. Stevens, 2 Duer, 635; contra, see Tousey v. Harrison, 25 How. 266). But where an order appointing a guardian in partition, in the first district, was entitled as if made by the judge personally and at chambers, it was held that the order might be amended so as to read as the order of the court and to be entitled at special term (Disbrow v. Folger, 5 Abb. 53). The bond must be signed by the guardian himself with sureties, a bond by sureties alone would be insufficient, semble (Jennings v. Jennings, 2 Abb. 6; and see Clark v. Clark, 14 Abb. 299; 21 How. 479). The bond, however, may be amended with the consent of the obligors, and by leave of the court, to be obtained on petition specifying the alterations required to be made. the reasons for them, and accompanied with the consent of the sureties (Shaw v. Lawrence, 14 How. 94). The petition should be filed before the guardian enters on his duties, but it may be ordered to be filed nunc pro tunc at any stage of the action, or even after judgment and sale (Croghan v. Livingston, 6 Abb. 350; 25 Barb. 336; 17 N. Y. 218).

d. A party entitled and intending to commence an action for partition may, before service of the summons, procure a guardian for minor defendants, to be appointed in the manner prescribed (2 R. S. 317, §§ 2, 3). When the guardian thus appointed has filed the prescribed bond, and given notice thereof to the party intending to institute such action, he has thereby effectually consented to act as guardian, and has accepted his appointment as such. The summons and complaint in such action should be served on him as such guardian, and such service is a proper service on the minors he represents (Althause v. Radde, 3 Bosw. 410). The omission of such guardian to file an answer to the complaint, or to give notice of his appearance in the action, will not affect the validity of a judgment that partition be made, especially if an answer be

filed by virtue of an order of the court, as of a time when it might have been regularly served as a matter of course, though such order be made after judgment perfected (id.) It is not absolutely necessary that a guardian ad litem for an infant defendant put in any answer (Bogert v. Bogert, 45 Barb. 121).

a. The want of a verification to a petition by an infant defendant for the appointment of a guardian ad litem, may be supplied after judgment, or perhaps such verification may be dispensed with altogether (Van Wyck v. Hardy, 11 Abb. 473; Rogers v. McLean, 11 Abb. 440; Croghan v. Livingston, 17 N. Y. 218).

b. Á guardian appointed in another State cannot, by virtue of his foreign appointment, appear for an infant in this State (Rogers v. McLean, 31 Barb. 305; see S. C. on appeal, 11 Abb. 440).

c. When, upon the petition of an infant defendant over the age of fourteen, a guardian ad litem has been appointed, the order is valid, although no summons had been previously served upon the infant (Varian v. Stevens, 2 Duer, 635), and a variance between the name of an infant as stated in the complaint and in the petition for the appointment of a guardian-as where the name was "Letitia Varian" in the complaint and "T. Letitia Varian" in the petition-may be disregarded as immaterial (id.) A plaintiff cannot apply for the appointment of a guardian ad litem for an infant defendant until after the expiration of twenty days from the service of the summons (Wilkes v. Wilkes, 1 Barb. Ch. R. 73). The clerk of the court will be appointed guardian ad litem for a nonresident infant (Minor v. Betts, 7 Paige, 596).

d. Defendant not answering.-In a partition suit commenced by summons and complaint, where any of the defendants omit to answer in due time, the plaintiff is entitled to apply for relief, as in other actions (Watson v. Brigham, 3 How. 290). The plaintiff, however, in such a case, must exhibit proof of his title, &c., as required by the revised statutes (Ripple v. Gilburn, 8 How. 456; Jennings v. Jennings, 2 Abb. 15; Porter v. Lee, 6 How. 491). It must be such proof as would enable him to recover in ejectment (Larkin v. Munn, 2 Paige, 27). Where the original defendants admit their several titles, and the title of the plaintiff as stated in the complaint, if one of them dies and the action is continued and his heirs made parties. query, must there be a reference as to the title of such heirs? (4 Paige, 481; 5 id. 161; 12 Wend. 269).

e Liens-advertising for.-It is not necessary to advertise for persons having general liens; if there are none, it would be a very useless expense to advertise for them. Advertising is only a method of cutting off certain general liens that may be in existence (Alvord v. Beach, 5 Abb. 453; Hall v. Partridge, 10 How. 188; Noble v. Cromwell, 27 How. 289). As to allowing creditors to come in and establish their lien after the time for so doing has expired, see Horton v. Buskirk (1 Barb. 421).

f. Contesting validity of devise.-Heirs at law, whether in or out of possession, may contest the validity of a devise, by their ancestor, of the property in suit. They must allege in their complaint that the apparent devise is void (Laws 1853, ch. 238, p. 526).

g. Improvement or injury.-Allowance to a party for (Green v. Putnam, 1 Barb. 500; 3 Paige, 199; id. 445; Hoff. 21; 3 Edw. Ch. R. 323; 3 Sand. Ch. R. 58; and see Bulen v. Burdell, 11 Abb. 381).

h. Contingent interest of persons not in esse.—An actual partition or a sale under a judgment in partition, is effectual to bar the future contingent interests of persons not in esse, though no notice is published to bring in unknown parties, and though such future owners may take as purchasers under a deed or will, and not as claimants under any of the parties to the action (Mead v. Mitchell, 17 N. Y. 210; 5 Abb. 92; Clemens v. Clemens, 37 N. Y. 59; 4 Trans. App. 50).

i. Partition and sale.—If a partition of part can be made without prejudice, it may be made and the residue sold (Ĥaywood v. Judson, 4 Barb. 228). The statute refers to a comparative prejudice between an actual par

tition and a sale, and will not justify a sale when the benefit from it is small, compared with the value of the property. The "prejudice" mentioned in the statute means a prejudice to all the owners and not to a part only (Van Arsdale v. Allen, 2 Barb. 599; see 6 Paige, 541; 1 Edw. Ch. R. 565).

ɑ. Judgment.-The judgment must set forth the estate of each known owner or of the defendants or some of them, collectively, when their rights between each other are disputed (Phelps v. Green, 3 Johns. Ch. 302). There can be no objection to a statement that certain definite portions belong, collectively, to owners who are unknown (Hyatt v. Pugsley, 23 Barb. 302).

b. The referee omitting to annex to his report the searches for incumbrances, does not render the judgment on such report irregular (Noble v. Cromwell, 27 How. 289).

c. The judgment, besides declaring the rights of the parties and directing a partition, may provide for an account of rents between the parties (Brownson v. Gifford, 8 How. 390). But if the complaint does not demand an account of rents against defendants in possession, and those defendants do not answer, no such account can be decreed (Bullwinker v. Ryker, 12 Abb. 311).

d. New trial.-In partition, a new trial will be granted on very slight grounds (Clayton v. Yarrington, 33 Barb. 144).

e. Manner of sale.-See Rule 73; Laws of 1869, p. 1377, held to be unconstitutional (7 Abb. N. S. 1).

f. Notice of sale. The provisions of the revised statutes, as to notice of sales by sheriffs, apply to sales in partition (Le Fevre v. Laraway, 22 Barb. 167). Where the sale was directed to be advertised for three weeks instead of six,-held that the error might be amended (Alcord v. Bench, 5 Abb. 451). The statutory provision, as to selling in parcels, is directory merely (1 Johns. Ch. R. 503; 7 Abb. 183). Notices of sales of land in Hamilton county may be published in Fulton county (Laws 1860, ch. 297).

g. Sheriff liable to account for proceeds of sale.-The sheriff is liable to account to the parties interested for the proceeds of a sale on partition, although the attorney in the action in fact conducts the sale and receives the proceeds (Van Tassel v. Van Tassel, 31 Barb. 439). For the omis sion of a sheriff to pay over to the county treasurer the proceeds of a sale of lands in a partition action, the period of limitation begins to run at the time the omission occurs (id.)

h. Death of plaintiff.—In an action for a partition and account of rents, the heir may revive as to the partition, and the personal representatives as to the account, semble (Hoffman v. Treadwell, 6 Paige, 308). In an action for partition, after judgment for sale and partition, and the advertising the sale had commenced, the plaintiff died, and such of his heirs as were not then already parties defendant were substituted in his place as plaintiffs,-held that it was not necessary to advertise anew, changing the title of the cause (Thwing v. Thwing, 9 Abb. 323; 18 How. 458).

i. Death of defendant.-Where, pending a partition suit, and after the expiration of the time to answer by one defendant, and before putting in any answer, that defendant dies, and the action is continued without making his heirs or devisees parties, the subsequent proceedings are void as to the interest of such deceased defendant (Requa v. Holmes, 16 N. Y. 123; 26 N. Y. 338; and see Waring v. Waring, 7 Abb. 472). In an action for partition, if one of several defendants dies pending the action, all that is necessary for the cause to proceed is that within a year an order be obtained under section 121 (Gordon v. Sterling, 13 How. 405).

j. Bringing in new parties by amendment.-A partition suit is an action for the recovery of real property within section 122, so that the court may order a person, not a party, but having an interest in the subject, to be made a party by amendment (Waring v. Waring, 3 Abb. 246).

k. Discharging purchaser, resale, &c.-The court will not discharge a purchaser because of any defect in the pleadings or proceedings which are amendable (Noble v. Cromwell, 6 Abb. 59; 26 Barb. 475); and as

§ 448.]


to discharging purchaser, see Mead v. Mitchell, 5 Abb. 92; 17 N. Y. 210;
Blakeley v. Calder, 15 id. 617; 13 How. 476; Croghan v. Livingston, 6 Abb.
350; 17 N. Y. 218; Waring v. Waring, 7 Abb. 476; Disbrow v. Folger, 5 id.
If a purchaser neglects to comply with
53; Rogers v. McLean, 10 Abb. 306.
the terms of sale within a reasonable time, the court will deprive him of the
benefit of his bid, and order a new sale in cases where a resale is deemed
more beneficial for the parties (Jackson v. Edwards, 7 Paige, 387; 22 Wend.
498); as to resale, see Le Fevre v. Laraway (22 Barb. 167). The court may
release a purchaser from his bid on the ground of unreasonable delay to his
prejudice on the part of the sellers (Jackson v. Edwards, 7 Paige, 387), or the
title is doubtful. Where one of the defendants has not been properly served
with process a purchaser will not be required to complete (Cook v. Farnham,
21 How. 286; O'Reilly v. King, 28 How. 408).

a. Inchoate right of dower.-How provided for, see 4 Sand. Ch. R. 396; 11 How. 176; 5 Abb. 54; Laws 1840, ch. 177 and 379.

b. Amendments.—An error in the description of the interests of the parties may be amended on the trial (Thompson v. Wheeler, 15 Wend. 340; Noble v. Cromwell, 26 Barb. 475; 6 Abb. 59). And, if the plaintiff omits to file any of the papers necessary to the regularity of the judgment, the court may allow them to be filed, nunc pro tunc (Waring v. Waring, 7 Abb. 473; Croghan v. Livingston, 6 Abb. 350; 17 N. Y. 218; Noble v. Cromwell, 26 Barb. 475). And where, in a judgment of sale, the sale was directed to be advertised three weeks instead of six, as required by law, but in fact the advertisement was published six weeks,-held, on motion to compel a purchaser to take title, that the error might then be corrected (Alvord v. Beach, 5 Abb. 451). So, too, the court will correct of its own motion a palpable error in the referee's report as to the extent of the interest of an infant party (Safford v. Safford, 7 Paige, 259; Carpenter v. Schermerhorn, 2 Barb. Ch. R. 314); and without sending back the report (id.) Where, through inadvertence, the names of certain defendants were omitted from the summons filed,-held that, on its being shown that such omitted names were actually parties, the summons might be amended after judgment and sale (Van Wyck v. Hardy, 11 Abb. 473; 20 How. 222). All irregularities in the proceedings may be amended, nunc pro tunc (Bogert V. Bogert, 45 Barb 121; Noble v. Cromwell, 27 How. 289; Rogers v. McLean, 31 How. 279; Clark v. Clark, 14 Abb. 300; 24 How. 479).

c. Plaintiff must prosecute his suit with reasonable diligence. Where a party commences an action for a partition and files a notice of lis pendens, but fails to proceed in the action with reasonable dispatch, a party named as a defendant, but who has not been served with summons, may apply by petition to have the plaintiff's proceedings vacated (Lyle v. Smith, 13 How. 104).

d. Value of inchoate tenancy by the courtesy.-The value of an inchoate tenancy by the courtesy depends not only upon the principle applicable to life-annuities and survivorships, but upon the fact of issue; and, if none, upon the likelihood of issue (Benedict v. Seymour, 11 How. 176).

e. Cost. When the plaintiff, in a suit in partition, makes persons defendants who have no interest in the subject-matter of the suit, the costs of such defendants will not be charged upon the fund or against their codefendants, but must be paid by the plaintiff personally, unless such unnecessary parties are brought in at the request of the other defendants (Hammersley v. Hammersley, 7 N. Y. Leg. Obs. 127). A doweress, when properly a party to the suit, is chargeable with a portion of the costs (Tanner v. Niles, 1 Barb. 560; see 3 Johns. Ch. R. 302; 1 Sand. Ch. R. 40; see ante, section 321, note).

f. Attorney's lien.-The attorney for the plaintiff in a partition suit acquires a lien for his disbursements, on the share of the plaintiff in the property in suit, of which the plaintiff cannot divest him by an assignment of his interest pending the action (Creighton v. Ingersoll, 20 Barb. 541).

g. Judgment-roll-in partition (Lynch v. Rome Gaslight Co. 42 Barb. 591). And see Laws 1851, ch. 277, as to recording decrees.

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