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Statutes, were the proper form to adopt in these cases, but even that they could not be carried on under those of the Code.
In Myers v. Rasback, 4 How. 83, 2 C. R. 13, the doctrine of Traver v. Traver is confirmed, so far as regards proceedings under the forms of the Revised Statues, which are held to be clearly saved by sec. 471 of the Code, and to be just as valid now, as before its passage. It is, however, as distinctly held that the court has power to entertain a proceeding for that purpose, instituted by way of summons and complaint, according to the forms of the Code, in the same manner as it was before competent to a party to institute proceedings for such purpose, either by petition under the statute, or by a suit in Equity.
My conclusion is, therefore,” says the learned judge, at the close of an elaborate opinion upon the subject, “ that the old suit in equity for the partition of lands, is now merged in the civil action under the Code, and, as such, may be prosecuted by summons and complaint.” In Row v. Row, 4 How. 133, this principle is subsequently admitted, by the same learned judge who decided Traver v. Traver, so that the principle that proceedings of this nature may now be carried on in either form, at the election of the parties, may be looked upon as settled.
It seems, by the authority of Row v. Row, that, though proper, it is not necessary under the Statute, for notice of their proceedings to be given by commissioners of partition, to the parties interested.
In Reed v. Child, 4 How. 125, it was held that, in proceedings under the forms of the Revised Statutes, any defence may be set up which may be available, notwithstanding the apparent limitation in sec. 16, of that part of the measure.
With reference to the subject of partition in general, and the manner in which the equity of the different parties will be provided for, in a decree, see Haywood v. Judson, 4 Barb. S. C. R. 228.
In Hamersley v. Humersley, 7 L. 0.127, a case of partition by suit, it was held that the costs of parties unnecessarily made defendants, must be borne by the plaintiff personally, and cannot be charged on the property, unless such parties were so brought in to the suit, at the request or consent of the other defendants.
Allegations however, directed with an express view to
costs, and to costs alone, are inadmissible. In McGowan v. Morrow, 3 C. R. 9, a statement in an answer, that the plaintiffs had unreasonably refused to make partition by deed, was stricken out as redundant, the court having no discretionary power to charge a party with costs, under the provisions of the Revised Statutes above referred to; which provisions were there held to be saved by the Code.
The solicitor for the plaintiff in partition, is not liable to be attached for non-payment of the commissioners fees, though collected by him. The only remedy the latter has, is an action in regular form-Lamoureux v. Morris, 4 How. 245; also apparently a case of proceedings under the forms of the Code,
In Vanderwerker v. Vanderwerker, 7 Barb. S. C. R. 221, the question as to who are or who are not proper parties to proceedings in partition was fully considered, and the pleadings were ordered at the hearing to be amended under sec. 173, on terms dictated by the court.
In Romaine v. McMillen, 5 How. 318, it was held that six weeks' notice of a sale in partition, is indispensably necessary under the provisions of the Revised Statutes ; those of rule 54, where a three weeks' notice is prescribed, as to the sale of lands in the city of New York under a judgment or decree, only applying to those cases in which the time is not fixed by statute. The sale, in that case, which had been made on a three weeks' notice, was accordingly set aside.
The general practice in partition cases is laid down by special rules of the supreme court, Nos. 77 to 79 inclusive, and has been heretofore considered under the different appropriate heads, and particularly under that of Judgment, and the proceedings consequent thereon.
In addition to the regular proceedings on partition in the ordinary form, a further special remedy is given by sections 86 to 88 of the title of the Revised Statutes above cited, 2 R. S.' 331, and also by sec. 5 of the amended act of 1830, ch. 329 The case provided for, is that of an infant, holding an undivided share of property sought to be divided by the other parties interested; under which circumstances, the court is empowered to authorize a partition, or a sale and conveyance, by the general guardian of such infant, on application by petition, and proof of the circumstances to its satisfaction, without going through the ordinary forms of a suit.
By sections 89 to 91 of the same title, similar powers are conferred in relation to the undivided share of a lunatic, under sitnilar circumstances, so far as regards partition only, on application of his committee ; but such powers do not extend to authorize a sale of property so situated, which cannot therefore be effected under such circumstances, except through the me. dium of a suit, or of a petition in the ordinary form.
Of an analogous nature to partition, is the special proceeding for the admeasurement of a widow's dower, as provided by title VII. chap. VIII. part III. of the Revised Statutes, 2 R. S. 488 to 493, the proceedings in which, when taken by petition as thereby provided, are specially saved by sec. 471 as before referred to, and are governed in all respects by the old prac. tice. As in partition, a widow, in these cases, has her election as to whether she will proceed in this manner, or by means of an action under the Code in the ordinary form, which latter proceeding it is competent for her to take, if she elect to do so. - Townsend v. Townsend, 2 Sandf, S. C. R. 711.
By section 419, a special saving is made as to proceedings to compel the determination of claims to real property, as under:
$ 449. 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 statutes.
In practice, however, it would seem to be impossible to carry out this enactment. In Crane v. Sawyer, 5 How. 372, 1 C. R. (N. S.) 30, it was held by Gridley, J., that, notwithstanding the terms of this section, it is impossible for proceedings of this description to be instituted, otherwise than under the forms of Revised Statutes. The very nature of those proceedings is incompatible with the ordinary forms of an action ; and such, on examination into the matter, would seem clearly to be the
The other special proceedings, under title VIII. of chapter V. part III. of the Revised Statutes, above cited, in relation to the discovery of the death of cestuis qui vie, are in no manner affected by the Code, or any of the decisions under it, and must, therefore, be carried on as heretofore. They are, in many respects, analogous to the remedies provided by the English law on the same subject, by the statute of Queen Anne, though the precise forms adopted are different.
In relation to real estate, two other special remedies are provided, neither of which is in any manner affected by the Code, or any
of the decisions under that measure. The first of these is the summary proceeding for the recovery of the possession of land in certain cases, provided for by title X. chapter VIII. part III. of the Revised Statutes, 2 R. S. 507 to 517. In these cases it would seem that no costs whatever, other than actual disbursements for officers' fees, are recoverable by the prevailing party-—Patridge v. Ford, 5 How. 21. The question as to how far the inhibition against the superior courts from granting a stay of proceedings in these cases, is or is not positively binding, under all circumstances, has been already considered, and the cases cited, under the head of Appeals from Inferior Courts.
The other proceeding alluded to, is the peculiar remedy of foreclosure by advertisement, without the institution of any suit, as provided for by title XV. chap. VIII. part III. of the Revised Statutes, 2 R. S. 545 to 548. The succeeding title of the same chapter, which provides for the compulsory compliance of unwilling owners in the draining of marsh lands, might also be classified under the head of a special proceeding in relation to real estate. Of course, neither of these remedies is in any manner affected by the Code, or by the decisions under it.
In Van Slyke v. Shelden, 9 Barb. S. C. R. 278, an omission to serve notice on the mortgagor, as required by the statute, in relation to the former of these proceedings, was held to be a fatal objection to the validity of the measures taken in that BOOK X V.
RETROSPECTIVE EFFECT OF THE CODE.
As a general rule, the Code, like other statutory provisions, must be looked upon as prospective only in its nature, leaving proceedings pending at the time of its passage, to be governed by the then existing practice. At the time, however, of that passage, this rule was modified as regards the operation of certain sections, and other provisions made in relation to then existing proceedings, by the collateral measure, entitled “An act to facilitate the determination of existing suits in the courts of this state," passed on the same day, viz., April 12th, 1848.
On the first amendment of the Code in 1849, an amendment of the supplementary act was also effected, by a law passed the same day, viz., 11th April, 1849, by which amended measure proceedings in then existing suits have since been governed, and may still be held to be so, as no formal repeal of the latter has ever taken place.
In the measure of 1851, however, an amendment of sec. 457 is effected, which seems to have the practical effect of superseding all other provisions, and of rendering every portion of the Code retrospective in all cases, and for all parposes. The section as now amended, runs in the earlier portion of it as follows :
“ The provisions of this act, apply to future proceedings in actions or suits heretofore commenced and now pending, as follows:
“1. If there have been so pleading therein, to the pleadings and all subsequent proceedings.
“2. Where there is an issue of law or of fact, or any other question of fact to be tried, to the trial and all subsequent pro ceedings.
“3. After a judgment or order, to the proceedings to enforce, vacate, modify, or reverse it, including the costs of an appeal.”
The latter portion of the section, is in relation to the appointment