CHAPTER 109.

TITLE XXIII. describing the premises assigned for the dower, and commanding the sheriff to put the plaintiff in possession thereof.

Costs of admeasurement of

dower.

Ejectment by mortgagee, &c. 1843, p. 139,

SEC. 60. The costs and expenses incurred in such admeasurement, shall be subject to the same provisions as in cases of admeasurement of dower by commissioners appointed by the judge of probate.

SEC. 61. No action of ejectment shall hereafter be maintained by a mortgagee, or his assigns or representatives, for the recovery of the 11 Wend., 538. mortgaged premises, until the title thereto shall have become absolute upon a foreclosure of the mortgage.

Who may have partition.

Suits how instituted.

By whom suit

CHAPTER 109.

OF THE PARTITION OF LANDS OWNED BY SEVERAL PERSONS.

SECTION 1. All persons holding lands as joint tenants or tenants in common, may have partition thereof, in the manner provided in this chapter.

SEC. 2. Any one or more of the persons so holding lands, may institute a suit in the circuit court for the county in which the lands lie, by a bill in equity for a division and partition thereof according to the respective rights of the parties interested therein, and for a sale of such premises, if it shall appear that a partition thereof cannot be made without great prejudice to the owners.

SEC. 3. Such suit may be maintained by any person who has an esmay be maintain tate in possession in the lands of which partition is sought, but not by one who has only an estate therein in remainder or reversion.

ed.

Bill to be verified

forth.

SEC. 4. The bill for a partition or sale of any such lands, shall be and what to set verified by oath, and shall particularly describe the premises sought to be divided, and shall set forth the rights and titles of all persons interested therein, so far as the same are known to the complainant, including the interest of any tenant for years, for life, by the curtesy or in dower, and the persons entitled to the reversion, remainder or inheritance after the termination of any particular estate therein, and every person who, by any contingency contained in any devise, grant or otherwise, may be or become, entitled to any beneficial interest in the premises.

Who may be made parties.

Unknown parties

terests.

SEC. 5. Every person having any such interest as aforesaid, whether in possession or otherwise, and every person entitled to dower in such premises, if the same has not been admeasured, may be made a party to such suit.

SEC. 6. In case any one or more of such parties, or the share or and uncertain in- quantity of interest of any of the parties be unknown to the complainant, or be uncertain or contingent, or the ownership of the inheritance shall depend upon an executory devise, or the remainder shall be a contingent remainder, so that such parties cannot be named, the same shall be set forth in the bill.

Creditors having

lien need not be

SEC. 7. It shall not be necessary in the first instance, to make any made parties in creditor having a lien on the premises in question, or any part thereof, by judgment, decree, mortgage or otherwise, a party to the proceedings, nor shall the partition of the premises alter, affect or impair

first instance.

the lien of any such creditor, except in the cases provided for in the TITLE XXIII next section.

CHAPTER 109.

undivided share

SEC. 8. When the lien is on the undivided interest or estate of any Effect of partiof the parties, such lien, if partition be made of the premises, shall tion upon lien on thereafter be a charge only on the share assigned to such party, and such share shall be first charged with its just proportion of the costs of the proceedings in partition, in preference to any such lien.

be made a party.

SEC. 9. But the complainants may, at their election, make every Creditor having creditor having a specific lien on the undivided interest or estate of specific lien may any of the parties, by mortgage or otherwise, a party to the proceedings; and in such case the bill shall set forth the nature of every such lien or incumbrance.

SEC. 10. Upon filing a bill in the circuit court for the partition or subpœna to apsale of any lands pursuant to the provisions of this chapter, the de- pear and answer. fendants, or such of them as reside in this state and can be found therein, shall be served with a subpoena to appear and answer the bill, and the same may be taken as confessed, according to the practice in courts of equity.

non-resident par. ties how notitied.

SEC. 11. If any parties having an interest in such lands are un- Unknown and known, or if either of the known parties reside out of this state, or cannot be found therein, and such facts be made to appear to the court by affidavit, an order may be made by the court containing a sufficient description of the premises whereof partition is sought, and requiring all parties interested to appear and answer the bill by a day in such order to be specified, which order shall be served personally, or shall be published once in each week successively in such paper as may be designated in such order, and for such time as the court shall designate, not exceeding three months.

against unknown

SEC. 12. The proof of personal service or [of] the publication of such Order to take bill order shall authorize an order of the conrt for taking the bill as confes- as confessed sed against all such unknown parties, and persons not resident in this parties. state, or not found therein, as shall not appear and answer by the day mentioned in the order, or on such further day as the court may appoint; and all such unknown parties as may appear, shall be entitled to be made parties to the suit, and the bill may be amended accordingly.

SEC. 13. The general guardians residing in this state, of all minors Guardians for and other persons under guardianship, who should be parties to such minors, &c. proceedings for partition, upon giving bond as hereinafter directed, shall represent their respective wards therein, whether such wards shall reside in or out of this state, and the court shall appoint guardians for all such minors who shall be interested in the premises, as have no general guardians in this state, for the special purpose of taking charge of the interests of such minors, in relation to the proceedings; and the acts of all such guardians of minors, or others under guardianship, shall be binding on their respective wards, and shall be as valid as if done by them respectively when of full age, or under no legal incapacity.

SEC. 14. Every such guardian shall give bond to the people of this Bond to be given state, to be filed with the clerk of the court, in such penalty, and with by guardian, such surety as the court shall direct; conditioned for the faithful performance of the trust reposed in such guardian, and to render a just and true account of his guardianship in all courts and places when

CHAPTER 109.

TITLE XXIII. thereunto required, and for the observance of the orders of the court in relation to the said trust.

On failure of

bond, clerk to

be appointed.

SEC. 15. When a bill shall be filed for the partition or sale of any Born to give lands in pursuance of this chapter, and any of the defendants therein are minors, or other persons under guardianship, and the general guardian, or person appointed guardian by the court, shall fail to give the security hereinbefore required, it shall be the duty of the court, on the application of the complainants, to appoint the clerk of said court, the guardian of such minors or other persons, for the purpose of such partition, and to dispense with the securities herein before required.

When issue of fact to be tried

by jury.

Court may per

ceedings to be amended.

SEC. 16. Any defendant may deny the joint tenancy, or tenancy in common, of any co-defendant; and whenever the court shall deem it necessary, for the purpose of determining the rights of any of the parties in the premises of which partition shall be sought, that any issue of fact between the parties, or any of them, should be tried by a jury, such court may award a feigned issue for that purpose, which shall be tried by a jury, and the verdict thereon be returned as in other cases, and with the like effect.

SEC. 17. Either before or after the trial of such issue, the court mit bill and pro- may permit the bill and all subsequent proceedings to be amended so as to represent truly the rights claimed by any party; or so as to make any person a defendant who shall have appeared in the course of the proceedings to be interested in the premises, and who might originally have been made a defendant if his interest had then existed or been known; but no person shall be so made a defendant unless by his consent, without twenty days' notice of the motion to that ef fect being personally served on him, or published once in each week successively for one month in such paper as the court may direct.

Rights of parties affected by amendinent.

Reference to

take proof of title

SEC. 18. After any such amendment, any party whose rights are affected thereby, and who has not had an opportunity to sustain his claim, shall have the right to answer the bill, or to put in a further answer thereto, and to maintain his claim, as the circumstances of the case may render proper.

SEC. 19. If the bill shall be taken as confessed by any of the deof complainants, fendants, whether known or unknown, the court shall order a reference to a master to take proof of the title of the complainants, and report the same to the court: and the complainants shall exhibit before such master, proof of their title, and an abstract of the conveyances by which the same is held.

Rights of parties

how ascertained,

on.

1 Paige, 27.

SEC. 20. Upon the hearing of the cause, the court shall ascertain and decree there: from the proofs so taken, in case of the bill being taken as confessed; or from the bill and answer, or pleadings and proofs, if the defendants appear and answer, and shall declare the rights, titles and interests of the parties to such proceedings, complainants as well as defendants, so far as the same shall have appeared; and shall determine the rights of the said parties in such lands, and shall decree that partition be made beween such of them as shall have any right therein, according to such rights.

Decree in case

the right of some

SEC. 21. If upon the hearing of the cause, the part or interest of of the parties do any parties who shall not have appeared and answered the bill, whether known or unknown, in and to such premises, shall not have appeared by the proofs in the cause, then the court shall decree that partition be made, so far as the rights or interests of the parties who

not appear.

CHAPTER 109.

are known, and who have appeared in the cause, have been ascertain- TITLE XXIII. ed, and the residue of the premises shall remain for the parties whose interests have not been ascertained, subject to division between them at any future time.

quire into situa

SEC. 22. Upon making a decree for partition as provided in the Reference to intwo last preceding sections, an order shall be entered referring it to tion of premises. a master to inquire into the situation of the premises, and to report whether such premises, or any part of them are so circumstanced that a partition and division thereof amongst the parties interested cannot be made without great prejudice to the owners.

SEC. 23. If upon the coming in of the report of the master, the When and how court shall be satisfied that partition of the premises between the commissioners par- appointed to ties interested therein can be made without prejudice to the owners, make partition. such court shall, by an order to be entered in its minutes, appoint three discreet and disinterested freeholders, commissioners, to make the partition so decreed, according to the respective rights and interests of the parties, as the same were ascertained and determined by such court, and in such order the court shall designate the part or shares, if any, which shall remain undivided, for the owners whose interests shall be unknown or not ascertained.

SEC. 24. If the persons so appointed commissioners, or either of Vacanciesthem shall die, resign, or neglect to serve, the court may, from time to time, appoint others in their places.

SEC. 25. The commissioners, before proceeding to the execution of Oath of commis their duties, shall severally be sworn before any officer authorized to sioners. administer oaths, honestly and impartially to execute the trust reposed

in them, and to make partition as directed by the court; which oath shall be filed with the clerk of the court, on or before the coming in of the report of such commissioner (commissioners).

be made.

SEC. 26. In making partition, the commissioners shall divide the How partition to said real estate, and allot the several portions and shares thereof to the respective parties, quality and quantity relatively considered, according to the respective rights and interests of the parties so adjudged and decreed by the court, designating the several shares and portions by posts, stones or other permanent monuments; and they may, if necessary, employ a surveyor with the necessary assistants, to aid them therein.

Report of com.

SEC. 27. The commissioners shall make an ample report of their proceedings, under the hands of any two of them, specifying therein missioners. the manner of executing their trust, and describing the land divided, and the shares allotted to each party, with convenient certainty, and the items of their charges.

SEC. 28. All the commissioners must meet together in the perform- All to meet, &c. ance of any of their duties, but the acts of a majority so met, shall be valid.

ses.

SEC. 29. The expenses of the commissioners, including the expen- Fees and expenses of a surveyor and his assistants, when they shall be employed, shall be ascertained and allowed by the court; and the amount thereof, together with such compensation as shall be allowed to the commissioners by the court for their services, shall be paid by the complainants, and shall be allowed to them as part of the costs to be taxed.

SEC. 30. On good cause shown, the court may set aside the report, Setting aside re and commit the case to the same, or appoint new commissioners, as

port, &c.

TITLE XXIII, often as may be necessary, who shall proceed in like manner as herein before directed.

CHAPTER 109.

Decree on confirmation of report.

il Wend., 647.

Persons and cases not affected.

When sale may be ordered.

Order to direct terms of credit, &c.

Credits, how secured.

Separate securities.

SEC. 31. Upon the confirmation of the report of any commissioners by the court, a decree shall thereupon be entered, that such partition be firm and effectual forever, and such decree shall be binding and conclusive,

1. On all parties named therein, and their legal representatives, who shall, at the time, have any interest in the premises divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder or inheritance of such premises, after the termination of any particular estate therein; or who, by any contingency contained in any will or grant, or otherwise, may be or become entitled to any beneficial interest in the premises; or who shall have any interest in any undivided share of the premises, as tenant for years, for life, by the curtesy, or in dower:

2. On all persons interested in the premises, who may be unknown, to whom notice shall have been given by personal service or by publishing the same as is herein before directed: and,

3. On all other persons claiming from such parties or persons, or either of them.

SEC. 32. But such decree and partition shall not affect any tenants, or persons having claims as tenants, in dower, by the curtesy or for life, to the whole of the premises which shall be the subject of such partition; nor shall any such decree and partition preclude any person, except such as are specified in the last preceding section, from claiming any title to the premises in question, or from controverting the title or interest of the parties, between whom such partition shall be made.

SEC. 33. If the master to whom reference shall be made as herein before provided, shall report to the court that the lands or tenements of which division and partition is sought, are so situated, or that any distinct tract, lot or portion thereof, is so situated, that a partition and division thereof amongst the persons interested therein, cannot be made without great prejudice to the owners; and if the court shall be satisfied that such report is just and correct, the court may thereupon make an order that the master sell the premises so situated, at public auction, to the highest bidder.

SEC. 34. The court shall direct, in such order, the terms of credit which may be allowed, for any portions of the purchase money of which it shall think proper to direct the investment, and for such portions of such purchase money, as are required by the provisions hereinafter contained, to be invested for the benefit of any unknown owners, any infants, any parties out of the state, or any tenants for life, in dower, or by the curtesy.

SEC. 35. The portions of the purchase money for which credit shall be allowed, shall always be secured at interest, by a mortgage of the premises sold, by a bond of the purchaser, and by such other security as the court shall prescribe.

SEC. 36. The master may take separate mortgages and other securities, for such convenient shares or portions of the purchase money, as are directed by the court to be invested, in the name of the clerk of the court in whose office the original bill for a partition was filed, and his successors in office; and for such shares as any known owner of full age shall desire to have so invested, in the name of such owner.