legal representatives: Provided always, That where any houses and lots Proviso. not exceeding fifty acres are so circumstanced that a division thereof can not be made without great prejudice to the owners 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 by satisfactory proof that such lot or lots do not contain more than fifty acres, and can not be divided among the owners without great and manifest prejudice to them, and also that the same do not, except in the cities of New-York, Albany and Hudson, and the town of Brooklyn, in Kings county, exceed in value the sum of seven thousand five hundred dollars, the said court shall thereupon order the said commissioners to sell such houses and lots at public vendue to the highest bidder, giving at least thirty days notice of the time and place of such sale, and the said commissioners after such sale shall report the same to the said court; and if the said court shall approve of such sale, they shall give judgment that the same be valid and effectual in law, and therein, or by a rule or order of the said court, direct the said commissioners to execute good and sufficient conveyances in the law to the purchaser or purchasers for the premises so sold, which shall operate as an effectual bar, both in law and equity, against the said parties and all persons claiming under them: And provided also, That the said limitation, as to the value of the said houses and lots which may be so sold, shall not apply to any lands, tenements or hereditaments, or to any houses or lots situated in the said cities of New-York, Albany or Hudson, or the said town of Brooklyn.

and paid.

4. And be it further enacted, That the costs and charges attending any Costs how to of the proceedings directed by this act, shall first be paid by the petitioners be recovered pursuing the same, and the said court on every final judgment to be rendered as aforesaid, either for partition of such lands, tenements or hereditaments, or upon a sale thereof, or for the partition of part and upon a sale of the residue thereof, shall also adjudge each of the parties concerned therein, other than the said petitioners, to pay to the said petitioners a proportion of the said costs according to their respective rights therein, which costs shall be taxed as in other cases for the like or similar services, and may be levied by execution against the person, goods, chattels, lands and tenements of the respective parties who shall be adjudged to pay the same, as in other cases where costs are to be recovered; and in case of any such sale, the court may order the same to be paid or retained out of the monies arising from such sale, and due to the parties who ought to pay the same.

sale how to

of.

§ 5. And be it further enacted, That the monies arising from every such Monies arissale shall be ordered by the said court to be paid by the said commissioners ing from such to the said parties, their guardians or legal representatives, in proportion be disposed to their respective rights in the lands, tenements or hereditaments so sold, deducting from their respective shares the costs and charges which may be ordered to be retained out of the same as aforesaid; and if any of the said parties shall be absent from this state without such legal representative, the proportion of the said monies due to every such party shall be put out at interest on sufficient security of real property, by order and under the direction and control of the said court for the benefit of such party. § 6. And be it further enacted, That it shall be lawful for the said court, Court may for any of the purposes intended by this act, and before or after the com- appoint guar mencement of any proceeding by virtue thereof, to appoint guardians for such minors, whether such minors shall reside in or out of this state; and the said court, on appointing any guardian as aforesaid, shall for the benefit of such minors, take sufficient security of every such guardian by bond to the people of this state, conditioned for the faithful discharge of the trust

dians to minors for the

purposes of

this act.

committed to such guardian, and to render a just and true account of such guardianship, in all courts and places when thereunto required, which bond or bonds shall be filed in the clerk's office of the said court; and the guardians of all minors so to be appointed, shall be and hereby are respectively authorised and empowered in behalf of the respective minors whose guardians they shall be, to do and perform every act respecting the proceedings for the partition of any lands, tenements or hereditaments under this act, or any matter or thing relating thereto, which shall be binding on such minors, and be deemed as valid to every purpose as if the same had been done by such minors after they should have arrived at full age. § 7. And be it further enacted, That the commissioners so to be apCommission pointed shall be allowed such sum for their services and expenses as the said court shall direct, and which shall be paid by the said petitioners, and shall be allowed as part of the costs to be taxed as aforesaid.

Compensation to the

ers.

&c. may have

Joint tenants, § 8. And be it further enacted, That all joint tenants and tenants in comthe like rememon, who now hold or hereafter shall hold jointly or in common, for years dies under or for life or lives, and all joint tenants and tenants in common where one

this act.

The several mayor's courts and courts of common

or more of them have or shall have estates for years or for life or lives with the other or others of them who have or shall have estates of inheritance or in fee, and each of them, shall in every such case have the like remedy for the partition of any lands, tenements or hereditaments so possessed or held by them in joint tenancy or tenancy in common, and in all respects subject to the like proceedings and regulations as are provided by this act.

§ 9. And be it further enacted, That the court of common pleas, called the mayor's court, in the city of New-York, and the respective mayor's courts of the cities of Albany and Hudson, and the courts of common pleas plens to have in the several counties of this state, shall, in respect to lands, tenements and

the like

power.

Proviso.

Former partitions of lands confirmed.

hereditaments situate in their respective cities and counties, in every of the cases mentioned in this act, have the like power to make partition of such lands, tenements and hereditaments, and in the same manner and form and subject to the like proceedings and regulations as are herein before prescribed with respect to the supreme court, and to try and determine any issue or issues to be joined as aforesaid, in the same manner as other issues may be tried and determined in such courts respectively; and all proceedings and judgments so to be had in any of the said courts shall be of the like force and effect as if the same were had in the supreme court: Provided however, That it shall be lawful for any of the parties in any proceeding to be had in any of the said courts by virtue of this act, at any time before judgment be thereupon given, that partition of the lands, tenements or hereditaments in question be made, or before a juror on any such issue be sworn, to remove into the supreme court all such proceedings by writ of certiorari, to be allowed by one of the judges of the said supreme court, and upon the removal of the same into the supreme court, the like proceedings shall be there had as if the petition had been first presented to the said supreme court.

§ 10. And be it further enacted, That every partition of lands, tenements or hereditaments previously held in joint tenancy or coparcenary, and heretofore made by commissioners appointed by the mayor's court of the city of New-York, or by any court of common pleas, according to the act, entitled "An act for the partition of lands," and the several acts amending the same, shall be deemed and taken to be as valid and effectual as if such lands, tenements or hereditaments had been so held in tenancy in

common.

Writs of er- § 11. And be it further enacted That on all final judgments to be given in any of the said courts upon any such partition being made, or upon a

ror may be

brought.

sale of the whole or part of the premises mentioned in any petition presented by virtue of this act, or upon any such sale of part and partition of the residue thereof, it shall be lawful for any of the parties to such judgment to bring a writ or writs of error thereon within the same time and under the like restrictions and regulations as in other cases,

An act supplementary to the act for the partition of lands, and for other purposes. Passed April 9th, 1804.1

WHEREAS it frequently happens that tenants in common, of lands, tenements, or hereditaments, are unable to discover who are their co-tenants, or to set forth the rights and titles of the respective parties interested in the premises: Therefore,

Certain alter

in the act for

§ 1. Be it enacted by the People of the State of New-York, represented in Senate and Assembly, That in every case where any one or more of the ations made parties interested in common as aforesaid, shall present a petition to the partition either of the courts of common pleas within this state, for the partition of of lands. any real estate, lying in the county where the said courts shall respectively be held, or to the supreme court for the partition of any real estate within this state, describing the same real estate, and his, her or their interest therein, and shall have complied with the directions of the act for the partition of lands, in respect to all the persons known to be interested as tenants in common in the same, and shall in the said petition suggest, and also make an affidavit, that he, she or they, is or are ignorant of the other persons interested as tenants in common, in the said lands, tenements or hereditaments, or some of them, the court shall direct a copy of the said petition, and a notice to the parties concerned in the said lands, tenements or hereditaments, and unknown as aforesaid, in such form as may be thought proper, to be published in one of the public newspapers printed in each of the cities of New-York and Albany, for the space of at least three months; and such publication shall be deemed sufficient notice to the parties so interested, though their names shall not be mentioned therein; and upon due proof by affidavit of such publication, the court may proceed to make rules for the persons interested in the said lands, tenements and hereditaments, and unknown as aforesaid, to appear and shew title to the proportions which they may claim of the same, and to answer the said petition; and if such persons shall appear and shew title as aforesaid, the proceedings shall in all respects thereafter be conformable to the said act, as if the said parties had been originally named in the said petition; but if the said parties shall not appear and shew title as aforesaid, then the court shall nevertheless proceed to appoint commissioners, and partition shall be made according to the directions of the said act, and the parties unknown shall thereupon be entitled in severalty to the proportions of the said lands, tenements or hereditaments, which shall be set apart for them respectively, or of the money arising from the sale thereof, as the case may be; and it shall be lawful for the said court to direct such money to be placed at interest and secured for the benefit of such parties until claimed, after deducting their just proportions of the expenses of such proceedings, or in case no such sale has been made, then to direct an execution for levying the said proportions out of the shares of the said parties unknown, which may fall to them respectively upon such partition: Provided always, That such partition shall not be deemed in any manner to conclude persons not named in such proceedings, and having or claiming any right or title of and in such property, from controverting the title and interest of the parties who may apply for

(1) 3 Webster, P. 625.

Commission

pointed.

or obtain such partition: And provided also, That such petitioners shall not be entitled to take out of court any of the money arising from any such sale, until they shall give security to the satisfaction of the court to refund the same with interest, in case they shall appear at any time thereafter not to have been entitled thereto : And provided further, That nothing in this act contained, shall be construed in any manner to authorise the revival or prosecution of any claim to lands, which might otherwise be barred by the statute of limitation, or the acquiescence of any party having such claim, or to aid the prosecution of any claim that may not be so barred, but every such claim shall be and remain in the same situation as if this act had not passed.

§ 2. And be it further enacted, That the supreme court may, in all caers to be ap- ses, appoint such three reputable freeholders as they may think proper, to be commissioners to make partition; and in case the lands, tenements or hereditaments to be divided shall be in more counties than one, may appoint different commissioners for the several counties, or any of them.

An act to amend an act,

lands."

entitled "An act for the partition of Passed April 2, 1806.1

1. Be it enacted by the People of the State of New-York, represented in Senate and Assembly, That the third section of the act, entitled "An act for the partition of lands," shall be and hereby is amended, so that the commissioners who are or may be appointed by virtue of the said act, shall be authorised to sell and dispose of, in the same manner as heretofore, any land held in joint tenancy, tenancy in common or coparcenary, not exceeding two hundred acres.

An act to amend the act, entitled "An act supplementary to the act, for the partition of lands," and for other purposes. Passed March 27, 1807.2

§ 1. Be it enacted by the People of the State of New-York, represented in Senate and Assembly, That the powers and authority given to the supreme court, and the several courts of common pleas in this state, as to the partition of lands, tenements and hereditaments, where tenants in common are unable to discover who are their co-tenants, be and hereby are extended and given to the several mayor's courts of the cities of NewYork, Albany and Hudson, as to the lands, tenements and hereditaments lying within the jurisdiction of the said respective courts.

An act to amend an act, entitled "An act for the partition of lands," passed the 7th April, 1801. Passed April 6, 1807.3

§ 1. Be it enacted by the People of the State of New-York, represented in Senate and Assembly, That the third section of the act, entitled "An act for the partition of lands," shall be and hereby is amended, so that the commissioners who are or may be appointed by virtue of the said act, shall be authorised to sell and dispose of, in the same manner as heretofore, any land held in joint tenancy, tenancy in common or coparcenary, not exceeding in value the sum of twenty thousand dollars.

(1) 4 Webster, p. 440. (2) 5 Webster, p. 79. (3) 5 Webster, p. 207.

An act to amend an act, entitled "An act for the partition of lands," passed the 7th day of April, 1801. Passed March 8,

1811.1

Courts may

of lands in

§ 1. Be it enacted by the People of the State of New-York, represented in Senate and Assembly, That whenever application shall be made for the order the sale partition of lands, tenements or hereditaments in the mode prescribed in certain cases. and by the act, entitled "An act for the partition of lands," or the act entitled "An act supplementary to the act for the partition of lands, and for other purposes," and a report shall be made by the commissioners appointed pursuant to the second section of said act, that the lands, tenements or hereditaments in question are so circumstanced, that a partition thereof cannot be made without great prejudice to the owners of the same, and it shall appear by satisfactory proof to the court to which such report shall be made, that the said lands, tenements or hereditaments cannot be partitioned among the owners and proprietors without great prejudice to their interests, the said court shall order the said commissioners to sell such lands, tenements or hereditaments at public auction, to the highest bidder, giving at least thirty days notice of the time and place of such sale; and the said commissioners, after such sale, shall report the same to the said court, and if the said court shall approve of such sale, it shall give judgment that the same be valid and effectual in law, and shall by rule of said court direct the said commissioners to execute good and sufficient conveyances in the law to the purchaser or purchasers, for the lands, tenements and hereditaments so sold; which said conveyances, duly executed as aforesaid, shall operate as an effectual bar, both in law and equity, against the said owners and proprietors, and all persons either parties or privies in interest in the premises so conveyed by said commissioners, and against all and every person and persons claiming by, from or under them, any or either of them.

ers to be ap

§ 2. And be it further enacted, That each of the provisos contained in Commissionthe third section of the act hereby intended to be amended; that the act, pointed. entitled "An act to amend an act, entitled, 'An act for the partition of lands,"" passed the second day of April, in the year one thousand eight hundred and six, and the act, entitled "An act to amend an act, entitled An act for the partition of lands," " passed the sixth day of April, one thousand eight hundred and seven, be and the same are hereby severally and respectively repealed.

repealed.

§ 3. And be it further enacted, That it shall and may be lawful for the Certain acts justices of the supreme court, upon good cause being shewn to them, in their discretion, to appoint as commissioners under the acts hereby amended, three freeholders residing in any county in this state, to make partition of any lands under the acts hereby amended, although the said lands may be situated in different counties, in the same manner as commissioners residing in the respective counties where the lands are situated, might or could do.

An act for the partition of lands. Passed April 12, 1813.2 [Sections 14, 15, 16, 17, 18 & 19, were new.]

land how made.

§ 1. Be it enacted by the People of the State of New-York, represented in Partition of Senate and Assembly, That where any lands, tenements, or hereditaments (1) 6 Webster, p. 124.

(2) 1 R. L. p. 507.-Br. ed. 82.-S. & L. v. 2, 237, 242.-V. S. v. 1, 76, 103, 111, 144, 408 to 414.-Ib. v. 2, 515.-J. & V. v. 1, 202 to 208.-Ib. v. 2, 185.-Gr. v. 1, 165, 296.-Ib. v. 2, 13, 340.-Ib. v. 3, 44, 129, 465.-K. & R. v. 1, 217, 542.-W. v. 3, 625.-Ib. v. 4, 440.Ib. v. 5, 79, 207.

VOL. III.

L