shall make a separate division of the lands so in dispute, and shall proceed to the complete partition of the same, in the manner before directed, aud the lines run for the limits of the bounds of the patent, shall always be laid down on the map on which the division is made, and on those to be filed in the secretary's office, and in the office of the clerk of the county.

survey in cer

§ 14. Provided always, and be it further enacted by the authority afore- Surveyor-ge. said, That no survey of the outlines of any patent shall be made by vir- neral not to tue of this act, in any case where such survey has already heretofore been tain cases. made by virtue of any former law of the legislature of this state, while a colony, or at the instance or request of the patentees or parties interested in the said lands, unless the said commissioners shall conceive such former survey of the outlines of any patent is not sufficiently certain to proceed to a partition and division as aforesaid.

pensive mode

estates.

§ 15. And whereas many small estates, held in common, require a A more easy more easy and less expensive mode for the division thereof, than that and less exwhich is herein before provided: Be it therefore enacted by the authority for the diviaforesaid, That where any lands, tenements, or hereditaments, shall be sion of small held in common, it shall and may be lawful for the court of common pleas in the county where such lands shall be, upon the application of one or more of the owners or proprietors of such lands, tenements and hereditaments, for partition thereof, it being proved to the satisfaction of the court, that the value of the said lands, tenements and hereditaments, do not exceed five thousand pounds, to appoint three reputable freeholders of the county, commissioners for that purpose, affidavit being first made before the court by the person or persons making such application, that the other owners or proprietors residing within the state, or the guardians of such owners or proprietors as are minors, have had thirty days previous notice of his or their intention of making such application; and the commissioners so to be appointed, after they shall have been duly sworn before one of the judges of the court of common pleas in such county, honestly and impartially to execute the trust reposed in them respectively, as commissioners for making partition of the lands, tenements and hereditaments, as directed by the court, shall proceed to make partition of the said lands, tenements and hereditaments, among the owners and proprietors thereof, according to their respective rights therein; which partition being made by the said commissioners, or any two of them, and a return being made thereof in writing, under their hands and seals, to the court, particularly describing the lands allotted to each respective owner or proprietor, and mentioning which of the owners or proprietors are minors, if any such there shall be; which return being acknowleged by the said commissioners, or any two of them, before one of the judges of such court, and accepted by the court, and entered of record in the clerk's office, shall be a partition of such lands, tenements and hereditaments as are therein mentioned: Provided always, That where any houses and lots are so circumstanced that a division thereof cannot be made without great prejudice to the owners or proprietors of the same, and the commissioners appointed to make partition of the same shall so report to the court; if it shall then appear to the court, that such houses and lots do not exceed in value the sum of three thousand pounds, the court shall thereupon give orders to the said commissioners, to sell such house and lot, or houses and lots of land, at public vendue, and shall make and execute good and sufficient conveyances to the purchaser or purchasers thereof, which shall operate as an effectual bar, both in law and equity, against such owners, proprietors, and all persons claiming under them; and the monies arising therefrom to pay to the owners or proprietors of such houses and lots of land, their guardians, or legal representatives, as shall be directed in the said order, retaining in their hands, for

Guardians authorised to

act in place of minors.

Partition of

between

their services and expenses, such sum as shall be allowed by the court; and the said commissioners, on a division of lands, tenements and hereditaments, by order of the court as aforesaid, shall be allowed such sum as the court shall award for their services and expenses, to be paid by the owners or proprietors of the lands, tenements and hereditaments so divided, in proportion to their respective rights therein; and in case of the neglect or refusal of any of the owners or proprietors, to pay his, her, or their proportion of the sum so awarded, the court shall order so much of the lands, tenements and hereditaments allotted to such owners or proprietors so refusing or neglecting, to be sold at public vendue, as will be sufficient to pay his or her proportion of the sum awarded by the court, together with the costs of such sale: And provided also, That no division or sale shall be made by order of the court as above directed, contrary to the intention of any testator, as expressed in his last will and testament.

§ 16. And be it further enacted by the authority aforesaid, That it shall and be lawful for the inferior courts of common pleas in the several may counties, to allow of guardians who shall be chosen by minors of the age of fourteen years, and to appoint guardians for such as shall be within that age; and the court, on allowing or appointing any guardian as aforesaid, shall take sufficient security of all such guardians for the faithful discharge of their trust, and to render a just and true account of such guardianship to the court, when thereunto required. And the guardians of all minors so to be allowed or appointed as aforesaid, shall be, and hereby are respectively authorised and empowered, on behalf of the respective minors whose guardians they are, to do and perform any act, matter or thing, respecting the division of any lands, tenements and hereditaments, as is directed in the above preceding clause, which shall be binding on such minor, and be deemed as valid to every purpose, as if the same had been done by such minor after he should have arrived at full age.

An act to compel joint tenants and tenants in common to make partition, and for the more easy obtaining partition of lands in coparcenary, joint tenancy and tenancy in common. Passed 6th February, 1788.1

§ 1. Be it enacted by the People of the State of New-York, represented in land by and Senate and Assembly, and it is hereby enacted by the authority of the same, whom made. That all joint tenants, and tenants in common, that now be, or hereafter shall be, of any estate or estates of inheritance in their own rights or in the right of their wives, of any manors, lands, tenements or hereditaments within this state, shall and may be compelled, by virtue of this act, to make partition between them, of all such manors, lands, tenements and hereditaments, as they now hold, or hereafter shall hold, as joint tenants or tenants in common, by writ of partition in that case to be devised, in the court of chancery, in like manner and form as coparceners, by the common law have been, and are compelled to do, and the same writ to be pursued at the common law; but that every of the said joint tenants or tenants in common, and their heirs, after such partition made, shall and may have aid of the other, or of his, her or their heirs, to the intent to dereign the warranty paramount, and to recover for the rate as is used between coparceners, after partition made, by the order of the common law.

Joint tenants, § 2. And be it further enacted by the authority aforesaid, That all joint &c compella- tenants, and tenants in common, and every of them, who now hold or hereafter shall hold, jointly or in common, for term of life or lives, year

ble to make

partition.

(1) 2 Jones & Varick, p. 185; 2 Greenleaf, p. 13.

or years, and joint tenants or tenants in common, where one or some of them have or shall have estate or estates, for term of life or lives, or year or years, with the other or others, that have or shall have estate or estates of inheritance, or freehold in any manors, lands, tenements or hereditaments, shall and may be compellable from henceforth, by writ of partition out of the court of chancery, upon his, her or their case or cases, and to be pursued at the common law, to make severance and partition of all such manors, lands, tenements and hereditaments, which they hold jointly or in common, for term of life or lives, year or years, or where one or some of them hold jointly or in common, for term of life or lives, year or years, with another or others, that have an estate or estates of inheritance or freehold. But that no such partition or severance hereafter to be made by force of this clause of this act, be, nor shall be prejudicial or hurtful to any person or persons, their heirs or successors, other than such as be parties unto the said partition, their executors or assigns.

partition.

§ 3. And be it further enacted by the authority aforesaid, That after pro- Manner of cess of pone, or attachment returned upon any writ of partition, between proceeding in coparceners at the common law, or custom, or between joint tenants or tenants in common, by virtue of this act, affidavit being made by any credible person, of due notice given of the said writ of partition to the tenant or tenants to the action, and a copy thereof left with the occupier or tenant or tenants, or if they can not be found, to the wife, son or daughter, (being of the age of one and twenty years or upwards) of the tenant or tenants, or to the tenant in actual possession, by virtue of any estate of freehold, or for term of years, or uncertain interest, or at will, of the manors, lands, tenements or hereditaments, whereof the partition is demanded, (unless the said tenant in actual possession be demandant in the action,) at least forty days before the day of the return of the said pone, or attachment, if the tenant or tenants to such writ, or any of them, or the true tenant to the messuages, lands, tenements and hereditaments, as aforesaid, shall not in such case, within fifteen days after return of such writ of pone or attachment, cause an appearance to be entered in such court where such writ of pone or attachment shall be returnable, then, in default of such appearance, the demandant having entered his declaration, the court may proceed to examine the demandant's title, and quantity of his part and purpart, and accordingly as they shall find his right, part and purpart to be, they shall for so much, give judgment by default, and award a writ to make partition, whereby such proportion, part and purpart may be set out severally; which writ being executed, after eight days notice given to the occupier, or tenant or tenants, of the premises, and returned, and thereupon final judgment entered, the same shall be good, and conclude all persons whatsoever, after notice as aforesaid, whatever right or title, they have or may at any time claim to have, in any of the manors, messuages, lands, tenements and hereditaments, mentioned in the said judgment and writ of partition, although all persons concerned are not named, in any of the proceedings, nor the title of the tenants truly set forth: Provided always, That if such tenant or person concerned, or either of them, against whom, or their right or title, such judgment by default is given, shall, within the space of one year after the first judgment entered, or in case of infancy, coverture, insane memory, or absence out of the state, within one year after his, her or their return, or the determination of such inability, apply themselves to the court where such judgment is entered, by motion, and shew good and probable matter in bar of such partition, or that the demandant hath no title to so much as he hath recovered; then, in such case, the court may suspend or set aside such judgment, and admit the tenant and tenants to appear and plead, and the cause shall proceed according to due course of law, as if no such

No plea in abatement admitted.

Duty of un

the absence

judgment had been given; and if the court upon hearing thereof, shall adjudge for the first demandant, then the said first judgment shall stand confirmed, and be good against all persons whatsoever, except such other persons as shall be absent or disabled as aforesaid; and the person or persons so applying, shall be awarded thereupon, to pay costs; or if, within such time or times aforesaid, the tenants or persons concerned, admitting the demandant's title, parts and purparts, shall shew to the court an inequality in the partition, the court may award a new partition, to be made in the presence of all parties concerned, if they will appear, notwithstanding the return and filing upon record of the former; which said second partition, returned and filed, shall be good and firm for ever against all persons whatsoever, except as before excepted.

§ 4. And be it further enacted by the authority aforesaid, That no plea in abatement shall be admitted or received in any suit for partition; nor shall the same be abated by reason of the death of any tenant.

§ 5. And be it further enacted by the authority aforesaid, That when der sheriff in the sheriff, by reason of distance, infirmity, or any other hindrance, can not of the sheriff. Conveniently be present at the execution of any judgment in partition, in such case the under sheriff in the presence of two justices of the peace of the county where the lands, tenements or hereditaments to be divided, do lie, shall and may proceed to the execution of any writ of partition, by inquisition in due form of law, as if the sheriff were then personally present; and the sheriff thereupon shall, and is hereby enabled and required, to make the same return as if he were personally present at such execution; and in case such partition be made, returned and filed, he or they that were tenant or tenants of any of the said messuages, lands, tenements and hereditaments, or of any part or purpart thereof, before they were divided, shall be tenant or tenants for such part set out severally to the respective landlords or owners thereof, by and under the same conditions, rents, covenants and reservations, where they are or shall be so divided; and the landlords and owners of the several parts and purparts so divided and allotted as aforesaid, shall warrant and make good, to the respective tenants, the said several parts severally, after such partition, as they are or were bound to do, by any agreement, leases or grants of their respective parts, before any partition made; and in case any demandant be tenant in actual possession to the tenant to the action, for his part and proportion or any part thereof, in the messuages, lands, tenements and hereditaments, to be divided by virtue of a writ of partition as aforesaid, for any term of life, lives or years, or uncertain interest, the said tenant so in actual possession, shall stand and be possessed of the said purparts and proportions for the like term, and under the same conditions and covenants, when it is set out severally in pursuance of this act.

Sheriffs, un&c. to attend

tition.

§ 6. And be it further enacted by the authority aforesaid, That the reder sheriffs, spective sheriffs, their under sheriffs and deputies, and in case of sickness execution of or disability of the sheriff, all justices of the peace within their respective writs of par- counties shall give due attendance to the executing such writ of partition, unless reasonable cause be shewn to the court, upon oath, and there allowed of, or otherwise be liable, every of them, to pay unto the demandant such costs and damages as shall be awarded by the court, not exceeding five pounds, for which the demandant or plaintiff may bring his action in any court having cognizance thereof, and recover the same with costs; and in case the demandant shall not agree to pay to the sheriff or under sheriff, justices and jurors, such fees as they shall respectively demand for their pains and attendance, in the execution of the same, and the returning thereof, then the court shall award what each person shall receive, having respect to the distance of the place from their respective habita

tions, and the time they must necessarily spend about the same, for which they may severally bring their actions as aforesaid.

An act to amend an act, entitled "An act for the partition of lands." Passed 10th February, 1791.'

§ 1. Be it enacted by the People of the State of New-York, represented in Senate and Assembly, and it is hereby enacted by the authority of the same, That it shall and may be lawful for commissioners who have been, or hereafter shall be appointed by virtue of the act aforesaid, or a major part of them, to make and subscribe a notice in writing, to a judge or judges as required in and by the third section thereof; and that on failure of the attendance of such judge or judges so notified, it shall and may be lawful for some other judge or judges, either of the supreme court, or court of common pleas for the county where the greatest part of the land lieth, not interested in the division, to see the balloting justly and impartially performed; and that a majority of the commissioners and a judge attending, and performing the balloting aforesaid, in manner directed by the said act, shall be as effectual in law, as though the judge or judges first notified had attended.

§ 2. And be it further enacted by the authority aforesaid, That the sixth section of the said act shall be, and hereby is extended as well to improvements made after the passing of the said act, as to improvements theretofore made.

An act to explain and amend an act, entitled "An act for the partition of lands." Passed 3d April, 1792.2

WHEREAS it is enacted in and by the sixth section of the act entitled, Preamble. "An act for the partition of lands," passed the sixteenth day of March, one thousand seven hundred and eighty-five, that in case of a partition of any patents or tracts of lands, on which improvements have heretofore been made by any person or persons, by consent of any owner or owners, proprietor or proprietors of such patents or tracts of land, the person or persons to whose share or shares such parcels of improved lands shall fall, upon a partition of such patents or tracts of land, shall, before he or they are permitted to the possession of the same, pay to the respective possessor or possessors thereof, the value of the improvements made thereon. And whereas doubts may arise, whether such possessor or possessors have had the consent of the owner or owners, proprietor or proprietors of such land, so divided, to make such improvement: Therefore,

§ 1. Be it enacted by the People of the State of New-York, represented in Mode of asSenate and Assembly, and it is hereby enacted by the authority of the certaining same, consent. That it shall and may be lawful to and for the person or persons to whose share any such parcels of improved lands may fall, to apply to any judge of the court of common pleas of the county in which the said improved land or the major part thereof lie, which judge, on such application, is hereby authorised and required to issue a venire to the sheriff of the said county, commanding him to summon twelve men, having the legal qualifications of jurors and not interested in the premises, to appear before the said judge on a certain day, and at a certain place therein mentioned, of which time and place, the said sheriff shall notify both proprietor and possessor, at which time and place the said judge shall duly swear the jury, and shall, in a summary way, inquire of the truth of such consent, and it is hereby declared to be the duty of such judge and jury, to make an inquest

(1) 2 Greenleaf, p. 340. (2) Ib. p. 442.