plaintiffs were in possession of the real property described in the petition, to-wit: (Here describe real estate), together with all the improvements thereon and the appurtenances, and that said plaintiffs had a legal estate therein and were entitled to the immediate possession of the same. That neither of the said defendants, nor any of them, have any estate in any part of the last aforesaid real property, and the plaintiffs ought to have their title and possession quieted as against each and every one of said defendants.

and

IT IS THEREFORE further ordered, adjudged and decreed, that the title and possession of said in and to, all and singular, the real estate and premises as above described, and as described in the petition herein, be, and the same hereby are quieted as against the above named defendants herein, and as against each and every one of said defendants, and against all persons claiming under said defendants, or any of them, adversely to said plaintiffs, and said defendants, and each of them, are hereby forever enjoined from setting up any claim to said premises, or any part thereof, adverse to the title and possession of said plaintiffs, their heirs or assigns, thereto.

and

on the

It is further considered, ordered and decreed by the court that the certain bond for a deed which was made, executed and delivered by the said day and which said bond was, on the 19-, recorded in the office of the register County, Oklahoma, in Record

of

19-, to

day of

of deeds of

at page

be, and the same is, hereby annulled, avoided and held to be of no force or effect; and it is further ordered that be, and he is hereby, allowed a fee for his services as guardian ad litem for the minor defendants herein in the sum of

to be taxed as part of the costs in this case.

It is further considered, ordered and adjudged by the court that the costs of this action be taxed to the plaintiffs herein.

Judge of said Court.

SECTION

1239. Confirmation of commissioners' report.

1240. The sheriff's deed.

1241. Commissioners' report when the property cannot be divided and must be sold.

1242. Sheriff's return.

1243. Election by one of the parties to take real estate at

the appraisement.

1244. Entry confirming sale, order

of deed and distribution of
funds.

SECTION

1245. Entry confirming report of appraisement and ordering sale of real estate.

1246. The order of sale from the
clerk to the sheriff.

1247. Legal notice of sale.
1248. Proof of publication.
1249. Sheriff's return.

1250. Confirmation of sale, order
for distribution and deed.

Sec. 1198. Nature of the proceeding-Equitable and statu

tory.

The procedure by which the share of one of the several owners of real estate in common is set off to him in severalty by the courts, may be either a proceeding in chancery, or it may be a statutory proceeding. While the distinction between the proceedings in chancery and the proceeding under the statute is well defined, yet the distinction is not a matter of much importance to the practitioner. Especially is this so since both are worked out by the same court. But cases have arisen in the practice in partition proceedings where it was necessary for the courts and those conducting the proceedings to know the distinction. In cases where the title is in question and equitable rights are involved, it is the chancery side of the court that is appealed to for the partition. The partition statutes have in no wise abridged the equitable powers of the chancellor in partition proceedings.

At law, in partition, the sheriff could only award an actual division of the land. Inequality in the ownership of the lands could not be adjusted, especially in cases where compensation was necessary to do exact justice to the co-owners. Later, when a parent had given lands or money to a child as a portion of his estate, equitable interference became necessary to do exact justice to all of his children. in the final distribution of his real estate. In such cases,

courts of equity award owelty by partition. As in almost

every case of the origin of an equitable remedy, equitable partition grew out of the demands of justice.1

The power of the chancellor is far-reaching in equitable partition. It has been well said by an eminent jurist that equity courts have long exercised the power to decide finally upon the rights of adverse claimants to real estate where the nature of the controversy properly called for the interference of a chancellor.

A bill to establish and enforce a trust gave him jurisdiction to hear and determine its existence and extent, and to enforce it, in a proper case, by compelling a conveyance by the defendant as trustee, notwithstanding his answer denying the entire title of the plaintiff. In this class of cases, as well as in a number of others, the fact that a decision of a judge, without a jury, might divest one in possession of real estate, does not affect the jurisdiction. The principle controlling is well known. Where a party cannot have adequate and complete remedy at law, he may apply in equity; and the chancellor, in such case, taking jurisdiction, retains it so far as may be necessary to furnish relief adequate and complete. A careful consideration of the position and relations of tenants in common of realty will satisfy the mind that when a cotenant has gone into possession and refuses to recognize the title of the owners of the other undivided shares, an ordinary suit at law will not furnish to them adequate and complete relief. In the proceeding for partition the court could not exercise chancery or equitable powers and was limited to the mode and extent provided by statute. There would seem to be good reason for holding that those statutory powers could only be exercised on behalf of parties whose title at law was disputed. But a civil action seeking equitable partition, together with an account of rents and profits, properly invokes the chancery powers of the courts.2

1 Linton v. Laycock, 33 O. S. 128; McMasters V. Smith, 5 W. L. M. (Ohio), 28; Perry v. Richardson, 27 O. S. 110.

2 Hogg v. Bierman, 41 O. S. 81; Perry v. Richardson, 27 O. S. 110.

Sec. 1199. One tenant cannot effect partition by deed, conveying his interest by metes and bounds.

One tenant cannot accomplish a partition by selling and conveying his interest to another by metes and bounds. Such purchaser, instead of taking an interest by metes and bounds, will take the undivided interest of the grantor. The purchaser will hold the interest purchased as a tenant in common with the original owners.3

Sec. 1200. Will may be construed-Course of descent and legality of bequest determined in partition.

It sometimes happens that by the terms of a will an estate in real estate is devised in such a manner that only a construction of the terms of the will can enable a division to be made of it, or the course of descent under the terms of the will can decide how partition can be made; and even in some cases, the validity of a provision of the will can be determined in a partition case.*

In such suit the rule that the intention of the testator must govern, applies to all partition proceedings in which the construction of a will is involved, but, where the intention remains in doubt, resort must be had to settled rules of construction for aid in the solution of the difficulty."

Sec. 1201. Partition creates no new titles.

Where tenants in common partition ancestral property by deeds, reciting as consideration for the same the full value of the land, such consideration may be shown by parol to be the actual amicable partition; and the property in an amicable partition of this kind, so coming to one of the heirs as a tenant in common of ancestral lands, will still be re

3 Dennison v. Foster, 9 Ohio, 130; Lessee v. Sayre, 2 Ohio, 110; Lessee v. Emerich, 6 Ohio, 391.

4 Perry v. Richardson, 27 O. S. 110; Patton v. Patton, 39 O. S.

590; Curran v. Taylor, 19 Ohio, 56; Helmig v. Meyer, 8 N. P. 31; Stapleton v. Ellison, 21 O. S. 527.

5 Linton v. Laycock, 33 0. S.

128.