only on the share assigned to such party; and such share will be first charged with its just proportion of the costs, in preference to the lien. (c)

But the complainants may, at their election, make every creditor having a specific lien on the undivided interest or estate of any of the parties, by mortgage, devise, or otherwise, a party to the proceedings.(d) And this is the course uniformly pursued by the best practitioners in the state; as it saves the necessity of amending the bill under the statute. (3 R. S. App'x, 155, § 42.) The 174th rule also requires that the rights of holders of specific liens and incumbrances shall be stated.

Previous to the revised statutes, it had been decided that neither a mortgagee nor a judgment creditor was a proper party to a partition suit; and that their rights could not be affected by a sale of the lands. (e) But the revised statutes have altered the rule, and have authorized the court to decree a sale, which will give the purchaser a perfect title, discharged from all liens and incumbrances.

If a lessee of land becomes the purchaser of an undivided moiety of the rent and reversion, the lease and rent is merged and extinguished as to that part of the premises; and he is not such a tenant in common of the rent and reversion with the owner of the other half as to entitle the latter to a partition during the continuance of the lease.(ƒ)

If the owner of an undivided moiety of a lot of land is a lessee of the other half, and the lease has become forfeited, the landlord must enter for the forfeiture, or must otherwise obtain possession of his undivided half before he can sustain a bill for partition.(g)

The statute directs that the rights of all persons interested in the premises as tenants by the curtesy, or in dower, are to be set forth in the bill; and authorizes every person entitled to dower, if it has not been admeasured, to be made a party.(h) Whenever there is a widow entitled to dower in the premises, it is advisable to make her a party; especially if a sale will be necessary. And the same remark may be made with respect to married women having merely inchoate rights of dower. For they may, in this manner, be barred of all claim upon the premises. Thus it was held, in the case of Jackson v. Edwards,(i) that the inchoate rights of dower of femes covert, whether infants or

(c) 2 R. S 318, §§ 8, 9. (d) Id. ib. § 10.

Welton v. Copeland, 7 John. Ch. Rep. 140. Sebring v. Mersereau, Hopk. 501. Harwood v. Kirby, 1 Paige, 469.

f) Lansing v. Pine, 4 Paige, 639. (g) Id. ib.

(h) 2 R. S. 318, §§ 5, 6.
(i) 7 Paige, 386.

adults, in the undivided shares of their husbands in real estate would be divested by a sale under the decree of the court in a partition suit, provided the femes covert were parties to the suit; so as to protect the purchasers against their claim of dower in case they should survive their husbands.

It is doubtful whether a woman married to one of the parties after the filing of the bill need be made a party to the suit. If she is brought in, however, it should be by an order that the further proceedings be in the name of herself and her husband; not by a supplemental bill, much less by amendment.(k)

A partition made on the application of a wife, without her husband, would not only be void as to him, but as to her also; as she cannot sue in her own name, except by her next friend. (1)

Where all the parties in a partition suit are adults, and have been personally served with process, the court does not examine the proceedings to ascertain whether all the proper parties are before it. If the necessary parties are not before the court, so as to make the decree final and effectual as to all persons interested in the premises, the defendants who are served with process should appear and make that objection.(m) But where persons are proceeded against as absentees, or as unknown owners of undivided portions of the premises, or where the rights of infants are involved, it is the duty of the court to look into the proceedings and see that all proper persons are made parties, so that the decree will be effectual to bind their rights as between such persons and the absent or unknown owners, or the infant defendants.(n)

Where an undivided portion of the premises has been conveyed to a trustee, upon a trust not authorized by the revised statutes, the cestui que trust is a nececessary party to the suit; to make the decree binding upon his interest in the premises. If, however, the absolute title to such portion is vested in a trustee upon a valid trust, it seems it is not necessary to make the cestui que trust a party; but that it will suffice to bring before the court the trustee, who has the whole legal estate. (o)

The statute contains a section authorizing any person having any interest in the premises, who is not named as a party in the petition, to apply to the court, by petition, accompanied by an affidavit of his interest, for leave to appear and answer, as a defendant.(p)

(k) 7 Paige, 386.

(1) Crowther v. Crowther, cited 2 Hoff. Pr. 165.

(m) Braker v. Devereaux, 8 Paige,

Another section authorizes the grantees of any of the parties to the suit to be brought in as parties, whenever their interest appears; provided they might originally have been made defendants, had their interest been known. This is to be done upon a personal service of a forty days' notice of the motion, or upon a publication thereof.(q)

SECTION III.

BILL OR PETITION.

prem

Form of] The bill or petition must particularly describe the ises sought to be divided or sold. It must set forth the rights and titles of all persons interested therein, so far as the same are known, including the interest of any tenant for years, or for life, or 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. (r)

In case any of such parties, or the share or quantity of interest of any of the parties be unknown or 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, such fact or facts must be mentioned. (s)

The 174th rule also directs that the bill or petition must state, in as concise a manner as possible, the rights and interests of the respective parties in the premises and the several specific liens and incumbrances thereon, so far as the same are known to the complainant. And if the rights of any of the parties are unknown to him, he must state the same according to his information and belief.

If, therefore, the rights of the defendants, as between themselves, depend upon the validity of a will under which an undivided part of the premises are claimed; or if the ownership of an undivided share of the premises is contingent or doubtful, and depends upon the construction

(q) 2 R. S. 320, § 21, (orig. § 20.) (8) Id. ib. § 7. (r) Id. 318, § 5.

of the will, it is proper for the complainant to state in his bill the fact of the making of the will, and the substance thereof, so far as is necessary to enable the court to understand the rights of the parties.(1)

It is not necessary to aver, in the bill, that the complainant is in possession of the premises; as that fact is presumed from the allegation that the parties are seised as tenants in common. (u)

Oath to.] The bill or petition must be verified by the oath of the complainant or petitioner in the usual manner.(v)

Service of] The statute directs that it shall not be necessary to serve a copy of the bill, except on the parties as they appear; nor any notice of presenting or filing the same, on any of the defendants named therein.(w)

Amendment of] The court may allow any amendment of the pleadings and proceedings, so as to make defendant thereto any person who appears, in the course of the proceedings, to be interested in the premises, by any will, deed, or grant, from any of the original defendants, and who might originally have been made a defendant, had his interest then existed or been known.(x) But no person can be made a defendant in this manner, without forty days' notice of the motion being served on him, or published, as in the case of an original application.(y) The bill may also be amended for the purpose of making parties to the suit such persons as may appear after the publication of an order to appear against them as unknown or absent parties.(z)

And the 43d section of the statute directs, that before the making of any order for the sale of the premises, where the creditors, having specific liens have not been made parties, the court, on the motion of either party, shall order the petitioner to amend his petition by making every creditor, having a specific lien on the undivided interest or estate of any of the parties, a party to the proceedings. (a)

Taking as confessed.] A bill for partition may be taken as confessed in the same manner as other bills in this court.(b)

To embrace all the lands, &c.] The 175th rule directs, that where several tracts or parcels of land lying in this state are owned by the same persons in common, no separate bill or petition shall be brought

() Van Cortlandt v. Beekman, 6 Paige, 492.

(u) Jenkins v. Van Schaack, 3 Paige, 245.

(v) Rule 174. See VOL. I., p. 44. (w) 2. S. 329, § 83.

(x) Id. 320, § 21, (orig. § 20.)
(y) Id. ib.

(z) Id. 329, § 84. See also § 85.
(a) Id. 324.

b) Id. 329, § 83.

for a partition of a part thereof only, without the consent of all the parties interested. If brought without such consent, the share of the complainant may be charged with the whole costs.

SECTION IV.

PROCEEDINGS FOR PARTITION.

The statute contemplates two courses of proceeding in order to procure a division of real estate held in joint tenancy or in common: 1. By a partition of the premises without sale; and 2. Where a partition cannot conveniently be made, owing to the peculiar nature and situation of the property, by a sale thereof.

In this section we will ask the reader's attention to the practice in cases where a partition, without a sale, is sought.

The statute directs, that upon a bill or petition for a partition or sale in this court, guardians of minors shall be appointed, the same rules as to parties shall apply, and the like proceedings shall be had as are directed in relation to proceedings in the courts of law, except as is thereinafter provided. (c) And the chancellor has decided that, although most of the provisions of the revised statutes respecting partition, relate particularly to the courts of law, the same course of practice must be adopted here, as far as is practicable; except in cases where a different course of practice is authorized or prescribed by law. (d)

Subpæna.] The defendants, or such of them as reside in this state and can be found therein, must be served with a subpoena to appear and answer the bill, as in other cases.(e)

Publication as to parties unknown or absent.] If any parties having an interest in the lands are unknown, or if either of the known parties, whether minors or of full age, reside out of the state, or cannot be found therein, and such facts are made to appear to the court by affidavit, an order may be made containing a sufficient description of the premises of which partition is sought, and requiring all parties interested in the same to appear and answer the bill, by a day in such order to be specified.(f)

(c) 2 R. S. 329, § 82, (orig. § 80.) (d) Larkin v. Mann, 2 Paige, 27.

(e) 2 R. S. 329, § 83. Larkin v. Mann, supra.

(f) Id. ib. § 84.