Obrázky stránek

the court shall have the same power to restrain the corporation, to appoint a receiver of its property, and to take an account, and make distribution thereof among its creditors, as are given in article three, title four, chapter eight, of the third part of the revised statutes; and it shall be the duty of the attorney general, immediately after the rendition of such judgment, to institute proceedings for that purpose.

See The People v. North. R. R. Co. 53 Barb. 98.

§ 445. Filing judgment-roll against corporation.

Upon the rendition of such judgment against a corporation, or for the vacating or annulling of letters patent, it shall be the duty of the attorney general to cause a copy of the judgment-roll to be forthwith filed in the office of the secretary of state.

§ 446. Entry of judgment relating to letters patent.

Such secretary shall thereupon, if the record relates to letters patent, make an entry in the records of the commissioners of the land-office, of the substance and effect of such judgment, and of the time when the record thereof was docketed; and the real property granted by such letters patent may thereafter be disposed of by such commissioners, in the same manner as if such letters patent had never been issued.

§ 447. Actions for forfeiture of property to the people.

Whenever, by the provisions of law, any property, real or personal, shall be forfeited to the people of this State, or to any officer for their use, an action for the recovery of such property, alleging the grounds of the forfeiture, may be brought, by the proper officer, in the supreme court.


Action for the Partition of Real Property.

$ 448. Provisions of the revised statutes, applicable to actions for partition.

The provisions of the revised statutes relating to the parti

tion of lands, tenements, and hereditaments, held or possessed by joint tenants or tenants in common, shall apply to actions for such partition brought under this act, so far as the same can be so applied to the substance and subject-matter of the action, without regard to its form.

a. Statutes. The statutory provisions relating to partition are 2 R. S. 317; and Laws of 1852, p. 411; and see Rules 77, 78, 79, and ante, pp. 30 a, 34 b.

b. Personal property.—An action cannot be maintained for the partition of personal property (Tinney v. Stebbins, 28 Barb. 290).

c. Partition, in what cases.-Partition between tenants in common is a matter of right (10 Paige, 470; 2 Barb. 599; see, however, 14 Abb. 208). It may be had by the several owners of property subject to a lease (Woodworth v. Campbell, 5 Paige, 518); and by a tenant in common of a vested remainder (Blakely v. Calder, 13 How. 476; 15 N. Y. 617); by assignees in trust for the benefit of creditors of a tenant for life (Van Arsdale v. Drake, 2 Barb. 599); or by a tenant by the courtesy initiate (Riker v. Darke, 4 Edw. Ch. R. 668); by a devisee (Ackley v. Dygert, 33 Barb. 176); and it was decreed where the plaintiff's interest consisted of being owner in fee of an undivided share of the mines and minerals on and in the premises, with power to go on the land and work such mines; and the defendant was owner in fee of the residue of the estate and interest in the premises (Canfield v. Ford, 16 How. 473; 28 Barb. 336). An action for partition cannot be maintained by one having a mere future contingent interest in an undivided share (Striker v. Mott, 2 Paige, 387); a widow claiming only in respect of her dower (Coles v. Coles, 15 Johns. 319), even after her dower has been assigned (Wood v. Clute, 1 Sand. Ch. R. 199); a remainder-man (Brownell v. Brownell, 19 Wend. 365; see, however, Blakely v. Calder, 15 N. Y. 617); nor can an action for partition be maintained where there is an adverse possession (Clapp v. Bromaghan, 9 Cow. 530; Burhans v. Burhans, 2 Barb. Ch. R. 398; Bradstreet v. Schuyler, 3 id. 608; Mathewson v. Johnson, Hoff. 560), except the adverse claim is on equitable grounds (Hosford v. Merwin, 5 Barb. 52; Core v. Smith, 4 Johns. Ch. Ř. 271); nor unless the plaintiff has himself possession, actual or constructive (Johnson v. Valentine, Court of Appeals, Oct. 1852; Stryker v. Lynch, 11 N. Y. Leg. Obs. 116; O'Dougherty v. Aldrich, 5 Denio, 385). But an existing admitted life estate, although covering "the whole premises," does not prevent the remainder-man from being deemed "in possession " within the meaning of this rule (Blakely v. Calder, 15 N. Y. 617; and see Fleet v. Dorland, 11 How. 489). So, where an intestate was seized and possessed of lands which descended to tenants in common, it was held that one of them, though not in possession, could maintain proceedings for a partition, the lands being unoccupied (Beebe v. Griffing, 14 N. Y. 235); otherwise of one who claims by virtue of a breach of a condition subsequent (O'Dougherty v. Aldrich, 5 Denio, 385). Nor can proceedings for a partition be maintained between a tenant in fee and his landlord (Lansing v. Paine, 4 Paige, 639). Nor by one of several partners pending an action for a dissolution of the partnership and an accounting as to the same property (Danvers v. Dorritty, 14 Abb. 206).

d. People.-Partition when the people of the State are interested, see

2 R. S. 231.

e. Proceedings for partition. The proceedings for partition must be by summons and complaint, they cannot be by petition under the revised statutes (Crogan v. Livingston, 17 N. Y. 218; 6 Abb. 350; Re Cavanagh, 14 Abb. 258; 23 How. 358). Courts of equity have an inherent jurisdiction independently of any statute, to order a sale of the equitable estates of infants (Wood v. Mather, 38 Barb. 474; or to decree a partition (Canfield v. Ford, 28 Barb. 336). Of course the parties may partition by deed, or even by parol Wood v. Fleet, 2 Trans. App. 257).

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; McWhorter 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. Nile Barb. 560; see, however, Ripple v. Ġilburn, 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 be-
half 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). Be-
fore 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 men-
tioned in the petition," is not sufficient to warrant the court in ordering pro-
ceedings 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
portion of the property, the fact that such owners are unknown must be al-
leged 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).

" of any

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. Beuch, 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).

¿. Partition and sale.—If a partition of part can be made without prejudice, it may be made and the residue sold (Haywood v. Judson, 4 Barb. 228).

The statute refers to a comparative prejudice between an actual par

« PředchozíPokračovat »