Judge of

court of common pleas

all the powers

sioners.

of such their inquiry in writing, under their hands and seals, and deliver a copy thereof to each of the parties, which shall be conclusive and final between the said parties, and legal evidence in any court of judicature.

§ 2. And whereas it is enacted in and by the said sixth section, that the commissioners shall, at the request of the party or parties, to whom vested with such parcel or parcels of improved lands shall appertain, issue their preof commis- cept to the sheriff of the county, commanding him to summons twelve freeholders, to settle and ascertain the value of the improvements made by the consent of one or more of the said owner or owners of such patents or tracts of land so divided. And as dfficulties may arise on the death or absence of one or more of the said commissioners: Therefore, Be it further enacted by the authority aforesaid, That any judge of the court of common pleas of the county in which the major part of the said improved land lies, not interested in the premises, shall, and may, and are hereby required to do, perform and execute all the duties and services which the said commissioners are, in and by the said sixth section of the said act, authorised, empowered and required to do, for which services the said judge shall have and receive the sum of ten shillings: And the said sheriff shall have and receive the sum of twelve shillings for his service, and the said jurors shall have and receive the sum of two shillings each, to be levied and paid as in and by the said act is directed.

Concerning

§ 3. And whereas difficulties may arise between the owner or owners, difficulties. proprietor or proprietors of patents or tracts of land so divided, and the possessor or possessors of such improved lands, who are not proprietors, but settled thereon by consent of some proprietor, in determining what rent or compensation such owner or owners, proprietor or proprietors shall have and recover, where there is no express agreement: For remedy whereof, Be it enacted by the authority aforesaid, That the owner or owners, proprietor or proprietors to whom any such improvements may be allotted, shall have and recover by an action on the case, of and from the possessor or possessors, who are not proprietor or proprietors, a reasonable compensation for the use and occupation of the premises so held; and the said judge and jury, authorised, empowered and directed to ascertain and value the improvements as aforesaid, shall and may, and are hereby required in every such case, to ascertain and value the use and occupation of the premises so held, used and occupied, the amount of which they shall deduct from the amount of the said valued improve

Preamble.

ments.

An act to explain and amend the acts relative to the partition of lands. Passed the 27th February, 1793.1

WHEREAS in and by the fifteenth section of the act, entitled "An act for the partition of lands," it is enacted, that where any lands, tenements or hereditaments shall be 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; and it is in and by the said section provided, 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

(1) 3 Greenleaf, p. 44; 3 Webster, p. 16.

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, at public vendue; which said provision was intended only to extend to town lots and the houses thereon, and not to large tracts of land. And whereas doubts have arisen respecting the said provision: Therefore,

moved as to

§ 1. Be it enacted by the People of the State of New-York, represented in Doubts reSenate and Assembly, and it is hereby enacted by the authority of the same, the sale of That no lot or lots exceeding fifty acres, nor any house or houses there- houses and on, shall be sold by virtue of the said recited proviso; and that no order lots. shall be made by any court, for the sale of any house and lot, or houses and lots, unless it shall appear to such court by satisfactory proof, that the same lot or lots do not contain more than fifty acres, and that the same cannot be divided among the owners, without great and manifest prejudice to them.

made, and by

2. And be it further enacted by the authority aforesaid, That in all sales, &c. cases where any tenements are ordered by any court to be sold, the how to be commissioners who are to sell the same, shall give at least thirty days whom. notice of the time and place of such sale, and no conveyance shall be given by the commissioners until such sale shall be by them reported to and approved of by the court in which the order for such sale was made; and in case any of the owners shall be absent, his or their proportion of the monies shall be put out at interest, or invested in some of the stock of the United States, by order of the court, for his, her or their benefit.

vided.

§ 3. And be it further enacted by the authority aforesaid, That in all Lands, &c. cases where commissioners are appointed by any such court, to divide how to be diany lands, tenements or hereditaments held in common, they shall divide the same into as many parts as there were shares in common, when such tenancy in common was first created and no more; and if any of the said parts are held in common by two or more persons, the owners of eve ry such part may apply for, and have partition thereof among them, or a sale thereof, if it cannot be divided according to the directions of the said recited act, and of this act.

be valued.

§ 4. And be it further enacted by the authority aforesaid, That if on Improveany of the lands, tenements or hereditaments so to be divided by commis- ments how to sioners to be appointed by any court of common pleas, there shall be any improvements made by any owner or proprietor, or by any person or persons, by consent of any owner or proprietor of such lands, tenements or hereditaments, such improvements shall be valued and paid for, in the same manner as is directed in and by the sixth section of the act, entitled "An act for the partition of lands," and the several acts explaining and amending the same.

§ 5. And be it further enacted by the authority aforesaid, That the third Act repealed section of the act, entitled "An act to explain and amend an act, entitled "An act for the partition of lands," shall be, and hereby is repealed.

An act further to amend the act, entitled "An act for the partition of lands." Passed 25th March, 1794.1

WHEREAS by the fifteenth section of the act, entitled "An act for the Preamble. partition of lands," it is, amongst other things, enacted, "That where any lands, tenements or hereditaments shall be held in common, it shall and may be lawful for the court of common pleas in the connty 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 (1) 3 Greenleaf, p. 129; 3 Webster, p. 57.

Preamble.

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;" and also, "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 their services and expenses such sum as shall be allowed by the court." And whereas inconveniences have been experienced in the city of New-York, and may be experienced in the city of Albany, by reason that the partition intended by the said section is limited to lands, tenements and hereditaments not exceeding five thousand pounds in value, and also by reason that the sale intended by the said section is limited to houses and lots not exceeding three thousand pounds in value: For remedy whereof,

§ 1. Be it enacted by the People of the State of New-York, represented in Senate and Assembly, That the partition intended by the said fifteenth section of the said act, entitled "An act for the partition of lands,” shall hereafter be deemed and construed to extend and apply to lands, tenements and hereditaments in the city of New-York, and in the city of Albany, exceeding five thousand pounds in value, and that the sale intended by the same section of the same act, shall hereafter be deemed and construed to extend and apply to houses and lots in the city of New-York, and in the city of Albany, exceeding three thousand pounds in value; any thing in the said section or in the said act, to the contrary thereof in any wise notwithstanding.

An act further to amend an act, entitled "An act for the partition of lands." Passed the Ist of April, 1797.1

WHEREAS it frequently happens that lands and estates lying in different counties within this state, are held and owned by several as tenants in common, joint tenants or coparceners. And whereas the frequent division of counties in this state by separating into different counties, estates which before such division, were situated in one county, renders the partition of such lands agreeably to the mode prescribed in and by the fifteenth section of the act, entitled "An act for the partition of lands," more inconvenient and expensive to the parties therein interested: Therefore, Commission-§ 1. Be it enacted by the People of the State of New-York, represented in ers how to bo Senate and Assembly, That whenever it shall or may happen that lands and

appointed.

estates lying in different counties in this state, are held and owned by several as tenants in common, joint tenants or coparceners, and shall so as aforesaid have been affected, or shall hereafter be affected by the division of any county or counties, it shall and may be lawful for the court of common pleas in the county where the greatest part in value of such lands, tenements or hereditaments shall be, upon the application of one

(1) 3 Greenleaf, p. 465; 3 Webster, p. 308.

or more of the owners or proprietors of such lands, tenements and hereditaments for partition thereof, it being proved to the satisfaction of the said court to whom such application shall be made, that the greatest part in value of such lands, tenements and hereditaments so to be divided do lie within the said county, and that they do not exceed in value the sum of twenty thousand dollars, to appoint commissioners, prescribed in and by the said fifteenth section of the said act, entitled "An act for the partition of lands," which commissioners shall and may proceed to a partition of such lands, tenements and hereditaments held in common as well in the county in which the greatest part in value thereof lie, as in the other counties in which other parcels thereof are situated, in like manner as they might have done if the whole of such lands, tenements and hereditaments were of a less value than twelve thousand five hundred dollars, and were situate in the county in which such commissioners were appointed: Provided always, That the whole of the estate so to be divided as aforesaid, shall not exceed in value the sum of thirty thousand dollars : Provided further, That this act shall not affect or be extended to any lands, tenements and hereditaments, other than such as lie in counties contiguous to each other, and are comprehended within one and the same patent or grant, or lie adjoining to each other.

An act for the partition of lands. Passed 7th April, 1801.1

proceed to

tion in the su

preme court.

§ 1. Be it enacted by the People of the State of New-York, represented in Joint tenants, Senate and Assembly, That where any lands, tenements or hereditaments &c. how to shall be held in joint tenancy, tenancy in common or in coparcenary, it make partishall be lawful for any one or more of the parties interested therein to present a petition to the supreme court, describing such lands, tenements or hereditaments, and setting forth the rights and titles of all the said parties therein, and praying that the same may be divided by commissioners to be appointed by the said court in pursuance of this act, according to their respective rights therein; a copy of which petition shall be served forty days previous to the term in which the same shall be presented, on all the parties concerned in such lands, tenements or hereditaments who shall not join in the said petition and shall reside in this state, or on the guardians of such of the said parties as are minors, together with a notice subscribed by the petitioners and directed to each of the said parties or their guardians as aforesaid, that an application will be made to the said court on the first day of the term therein mentioned, or as soon thereafter as counsel can be heard, for the appointment of such commissioners; and in case any of the said parties to be notified as aforesaid shall reside out of this state or cannot be found therein, and the same be made to appear by affidavit to the court on presenting such petition as aforesaid, a copy of such petition and of such notice shall be previously published for the space of three months in one of the public newspapers printed in each of the cities of New-York and Albany, which publication shall be deemed sufficient notice to such parties: Provided however, That in all cases the service of a copy of such petition and notice on any of the said parties not resident in this state, shall as to such parties, be also deemed a sufficient service of the same without publication thereof as aforesaid.

Proviso.

§ 2. And be it further enacted, That on presenting the said petition and Manner of proof being made by affidavit to the satisfaction of the said court, that co- proceeding in partition. pies of the said petition and notice have been duly served or published as aforesaid, the said court shall by rule, order that the parties so notified appear and answer the said petition within the usual time allowed for

(1) 1 Kent & Radcliff, p. 542.

Commissioners to be

sworn, and to

tion and re

turn thereof.

pleading in the said court, and such parties or any of them within such time or within such further time as may be allowed for that purpose by the said court, may appear and answer or plead to the said petition as to a declaration, and such further pleadings may thereupon be had between the parties respectively, according to the rules and practice of the said court, as in other actions or suits depending therein, until an issue or issues in law or in fact be joined between the said parties respectively, or some of them; and any of the parties who shall answer the said petition may plead thereto non tenent insimul, and give any special matter in evidence under the said plea which might be otherwise pleaded, giving notice with the said plea of the several matters so intended to be given in evidence, and all such issues shall be tried, and the like proceedings for the trial thereof shall be had, as in other actions in the said court; and the said court shall have power to award new trials after the trial of such issues of fact as in other cases; and after the final determination of all such issues, the said court shall ascertain and determine the respective rights of the said parties in such lands, tenements or hereditaments, and give judgment that partition thereof be made between them according thereto, or between such of them as shall have any right therein; and if the said parties so notified as aforesaid, or any of them, shall not appear and answer or plead to the said petition within the time allowed for pleading as aforesaid, or if the matter of the said petition be confessed by all the said parties or any of them, the said court shall give the like judgment by default or confession against such parties; and in every case after determining the rights of all the said parties and judgment be given thereon, the said court shall by rule or order appoint three reputable freeholders of the city or county in which the said lands, tenements or hereditaments, or the greatest part in value thereof shall be situated, commissioners to make the said partition, quality and quantity relatively considered, according to the respective rights and interests of the parties to be adjudged as aforesaid.

3. And be it further enacted, That the commissioners to be appointed as aforesaid shall, before they proceed to make such partition, be severally make parti- sworn or affirmed, as the case may be, before one of the judges of the said court or a commissioner appointed to take affidavits to be read in the said court, honestly and impartially to execute the trusts reposed in them, as commissioners for making partition of the lands, tenements and hereditaments as directed by the said court; which oath or affirmation shall be taken and subscribed by the said commissioners and filed in the office of one of the clerks of the said court at or before the time of making the return by them of such partition as herein after mentioned; and the said commissioners shall thereupon proceed to make the said partition among the parties, of the said lands, tenements and hereditaments, according to their respective rights therein, and the said partition shall be made by the said commissioners, or any two of them, and a return thereof shall be made by them in writing, under their hands and seals, to the said court, and particularly describing the part or share allotted to each owner; and the said return shall be acknowledged by the said commissioners, or any two of them, before one of the judges of the said court, or before one of the of ficers authorised to take the proof and acknowledgment of deeds and conveyances by law; and the said court, upon good cause shown by any of the said parties against the justice or regularity of such partition and return, may set aside the same and appoint commissioners anew to make such partition, who shall in all things proceed as such commissioners are above directed to proceed; but if no such cause be shown, the said court shall confirm the said partition and return, and give judgment that the same be firm and effectual for ever between all the parties thereto; and such judgment shall be binding and conclusive on all such parties and their