CHAPTER III.

Action for the Partition of Real Property.

SECTION 448.-Provisions of revised statutes applicable to actions for partition.

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

The provisions of the revised statutes relating to the partition 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 so be applied to the substance and subject matter of the action, without regard to its form.

a. The code of 1848 had no section corresponding to this; and under the code of 1848 a doubt existed whether the proceedings for partition should be by petition under the revised statutes, or by summons and complaint under the code. It was held both ways, but finally that the proceedings might be either by summons and complaint or by petition, at the option of the plaintiff. Watson v. Brigham, 1 Code Rep., 67; 3 Pr. R., 290; Myers v. Rasback, 2 Code Rep., 13; 4 Pr. R., 83; Myers v. Borland, ib.; Backus v. Stillwell, 1 Code Rep., 70; 3 Pr. R., 318; Traver v. Traver, 1 Code Rep., 112; 3 Pr. R., 351; Row v. Row, 4 Pr. R., 133.

b. Where the proceedings are instituted by petition, the pleadings are intended to be similar to an action under the code. The petition is to stand for the complaint, and any thing may be pleaded which will abate the action or bar the petitioner's right to a judgment. Reed v. Child, 2 Code Rep., 69; 4 Pr. R., 125.

c. "Any of the proceedings in partition may be had at a general or special term of the supreme court, except the trial of issues of fact; and such issues may be tried at a special term of such court, by the justice or justices holding the same, by consent of all the parties in the cause, and pursuant to the provisions of the 80th section of chapter 280 of the laws of 1847, entitled, 'An act in relation to the judiciary,' passed May 12, 1847." Laws of 1847, ch. 470, s. 14. d. 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 (Laws of 1847, p. 557, s. 4), an order of reference will be made for that purpose. 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. Northrop v. Anderson, 8 ̊Pr. R., 351.

e. An action for partition cannot be maintained by a person, whatever his title, unless he is actually or constructively in possession of the premises sought to be divided, or part of tem. Johnson v. Valentine, Court of Appeals, October, 1852 ; Stryker v. Lynch, 11 Leg. Obs., 116.

f. In proceedings for the partition of land, either at law or in equity, 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.

a. If the dower extends to the whole of the premises held in common, there is no reason for making the doweress a party, except where a partition of the premises cannot be made without great prejudice to the owners thereof, and a sale therefore becomes necessary; in which case there is a manifest propriety in making her a party, as the purchaser will hold the land purchased by him free and discharged from the dower interest, provided the doweress has been made a party. Ib.

b. In that case the doweress is obliged to contribute to the costs, because they are to be paid from the proceeds of the sale, and the residue is to be distributed. Ib.

c. But where an actual partition and division of the land among the joint tenants and tenants in common takes place, the judgment or decree in partition will not affect the tenant, or person having a claim as tenant in dower to the whole premises. Ib.

d. The statute does not, in any case, contemplate a setting off or admeasurement of a dower interest in a partition suit. Ib.

e. Method of apportioning the cost of a partition suit among the several parties to such suit. Ib.

f. In an action for partition and sale of real estate, it is not necessary to advertise for persons having general liens by judgment or decree to present their claims to a referee, &c., in order to render a sale regular and valid (Laws of 1830, ch. 320; 12 Wend., 269). The advertisement and reference are intended only as a means of cutting off certain general liens. If there are none, there is no use of the advertisement; and if the parties to the suit know there are none, there is no reason why they should be subjected to the expense and delay of an advertisement and reference that must amount to nothing. Hall v. Partridge, 10 Pr. R., 188.

g. In a partition suit commenced by summons and complaint, where any of the defendants omit to answer in due time, it is not necessary to enter an order for their default in not answering, the plaintiff is entitled to the relief asked for, as in other actions. Watson v. Brigham, 1 Code Rep., 67; 3 Pr. R., 290.

h. An allegation in an answer in a partition suit, that the plaintiff had unreason. ably refused to make partition by deed, was stricken out as irrelevant. McGowan v. Morrow, 3 Code Rep., 9.

i. The court has no discretionary power to charge either party with the entire costs in partition, upon the ground that the plaintiff unreasonably refused to make partition by deed. The provisions of the revised statutes (2 R. Š., 328, s. 77) are not repealed by section 306 of the code, but the latter must be construed in connection with and as qualified by the former. Ib.

j. But when the plaintiff in a suit in partition makes persons defendants who have no interest in the subject matter of the suit, the cost of such defendants will not be charged upon the fund or against their co-defendants, 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 Leg. Obs., 127.

k. Notice of commissioner's proceedings in partition is not required by statute to be given to the parties. It would be proper, however, that the parties should have an opportunity to be heard before the commissioners prior to partition (Row v. Row, 4 Pr. R., 133); and the necessity of such notice must be implied, for it is one of those adjudications of a judicial nature affecting the rights and interests of the parties, in which they have a right to substantial and beneficial notice, and without it the report of the commissioners will be set aside. Dean v. Empire Mut. Ins. Co., 9 Pr. R., 69; and see Supreme Court Rules 72, 73, 74; and see Hayward v. Judson, 4 Barb, 228; Laws of 1847, cap. 430; Laws of 1851, p. 555; Laws of 1852, p. 411; and Laws of 1853, p. 536.

1. The report of commissioners in partition will not be set aside only upon grounds similar to those upon which a verdict would be set aside and a new trial granted (4 Edw. Ch. R., 896). The affidavit of four credible and disinterested persons for, to three against, setting aside such report, does not carry such a weight of evidence

as to authorize the court to interfere to disturb the report. Doubleday v. Newton, 9 Pr. R., 71.

a. The superior court has jurisdiction of an action for partition of real estate situate within the city of New York. Varian v. Stevens, 2 Duer, 635.

CHAPTER IV.

Actions to determine conflicting claims to real property, and for waste and nuisance.

SECTION 449. Actions to determine claims to real property, how prosecuted.
Action of waste abolished. Waste, how remediable.

450.

451.

Provisions of revised statutes applicable to actions for waste under this act.

452. When judgment of forfeiture and eviction to be given.

453. Writ of nuisance abolished.

454. Remedies for injuries heretofore remediable by writ of nuisance.

§ 449. Actions to determine claims to real property, how prosecuted.

Proceedings to compel the determination of claims to real property, pursuant to the provisions of the revised statutes, may be prosecuted by action under this act, without regard to the forms of the proceedings as they are prescribed by those stat

utes.

b. Notwithstanding this section, it has been held that actions to determine conflicting claims to real property must still be commenced in the manner prescribed by the revised statutes. Crane v. Sawyer, 1 Code Rep. N. S., 30, Gridley, J.: In a subsequent case on appeal at general term (Hammond v. Tillotson, 18 Barb., 332) it was held, that proceedings to compel the determination of claims to real property must be commenced and carried on, as to form, as prescribed by the code; that the subscription to the summons is a substitute for the subscription to the notice required by the revised statutes; and that the complaint, in the usual form of a complaint under the code, is to state substantially what is required by the revised statutes; and that the summons is to require an answer within twenty, not forty, days.

c. In case of a trial in the proceedings to determine conflicting claims, either party conceiving himself aggrieved may appeal, as in personal actions under the code. Laws of 1855, p. 945, s. 11.

d. The costs allowed to the prevailing party in a summary proceeding to recover possession of land, are merely the fees of those officers who are required to perform the services, such as the judge, sheriff, constable, &c. Attorney and counsel fees are not recoverable against the adverse party. Partridge v. Ford, 5 Pr. R., 21.

e. The provisions of the revised statutes relative to the determination of claims to real property (2 R. S., 313) were amended by Laws of 1848, p. 67; Laws of 1854, p. 276; and Laws of 1855, p. 943.

§ 450. Action of waste abolished. Waste, how remediable. The action of waste is abolished; but any proceeding heretofore commenced, or judgment rendered, or right acquired shall not be affected thereby. Wrongs heretofore remediable by action of waste, are subjects of action as other wrongs, in which action there may be judgment for damages, forfeiture of the estate of the party offending, and eviction from the premises.

451. Provisions of revised statutes applicable to action for waste under this act.

The provisions of the revised statutes relating to the action of waste, shall apply to an action for waste brought under this act, without regard to the form of the action, so far as the same can be so applied.

§ 452. When judgment of forfeiture and eviction to be given. Judgment of forfeiture and eviction shall only be given in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in reversion shall be adjudged in the action to be equal to the value of the tenant's estate, or unexpired term, or to have been done in malice. 453. Writ of nuisance abolished.

The writ of nuisance is abolished; but any proceeding heretofore commenced, or any judgment rendered, or right acquired, shall not be affected thereby.

§ 454. Remedy for injuries heretofore remediable by writ of nuisance.

Injuries heretofore remediable by writ of nuisance, are subjects of action, as other injuries, and in such action there may be judgment for damages, or for the removal of the nuisance, or both.

a. Au action pursuant to this section is a substitute for the statute remedy by writ of nuisance, and the plaintiff must aver in his complaint all that was be fore requisite to sustain an action of that nature. Ellsworth v. Putnam, 16 Barb. 565.

CHAPTER V.

General provisions relating to actions concerning Real Property.

SECTION 455. Provisions of revised statutes applicable thereto.

§ 455. Provisions of revised statutes applicable thereto. The general provisions of the revised statutes relating to actions concerning real property, shall apply to actions brought under this act, according to the subject matter of the action, and without regard to its form.

a. The revised statutes (2 R. S., s. 38), provide "that the court in which such judgment (i. e. judgment in ejectment) shall be rendered at any time within three years thereafter, upon the application of the party against whom the same was rendered, his heirs and assigns, and upon payment of all costs and damages recovered thereby, shall vacate such judgment and graut a new trial in such cause." In an action commenced since the code took effect, to recover possession of real estate, the defendant had a verdict, and the plaintiff (within three years) moved for a new trial under the above provisions of the revised statutes. The defendant objected that the judgment had not been perfected, and that the revised statutes did not apply; but the court, Marvin, J., held, that the revised statutes did apply, and ordered that the plaintiff be allowed to perfect the judgment unless the defendant did so within ten days, and that when perfected the judgment should be thereupon vacated and a new trial granted without order, on the terms (we presuine, the report being silent upon the subject) prescribed by the revised statutes. And in an action commenced before the code went into effect and decided since, where, the judgment having been paid, the defendant moved for a new trial pursuant to statute (2 R. S., 309), it was held that the court had no discretion. The statute is imperative that the party, on application and payment of all the costs and damages recovered, shall have a second trial. The code has made no change in this part of the practice, even in suits commenced since it took effect; for, although the action of ejectment is not retained by name, in actions for land these provisions of the revised statutes apply. Rogers v. Wing, 5 Pr. R., 50; Lang v. Ropke, 1 Duer, 701. But the provisions of the revised statutes do not apply to a submission without action under section 372. Ib.

b. Where it appeared on the trial of an ejectment suit against a corporation, and against individuals, that the individual defendants were severally in possession of separate rooms in a dwelling house on the premises, and of separate parcels of land as tenants of the other defendant, and the corporation was actually in possession of only part of the premises, it was held that in such a case, the plaintiff is bound to elect against which of the defendants he will proceed, and a verdict must be rendered in favor of the other defendants. A general verdict in such a case cannot be sustained. Fosgate v. Herkimer Manufac. Co., 9 Barb. 287.

c. See section 121, and Laws of 1847, cap. 337. Laws of 1846, c. 159, and section 18 [25] of 2 R. S., 4th ed. 567 [306] [part 3, ch. 5, tit. 1], providing that no actual entry under title need be proved, is not repealed by the code, but is expressly retained by section 455 (Lawrence v. Williams, 1 Duer, 587); and sections 8,23 [30] 27 [34,] of the same title, are also retained, and are still in force. Budd v. Bingham, 18 Barb. 498.