Notice and

tition when

Notice

side out of

territory.

petition to the district court of the county in which the premises are situate, describing in such petition such lands, tenements or hereditaments, and setting forth the rights and titles of all the said parties therein; or in case any one or more of such parties, or the share or quantity of interest of any one or more parties are unknown to the petitioner, setting forth the same in such petition, accompanied by an affidavit that such petitioner is ignorant of the names, rights or titles of such person or persons, as the case may be, and by the said petition praying the court to whom the same shall be directed, that the same premises may be divided, by commissioners to be appointed by the said court, according to the respective rights of the parties therein, and in pursuance of the directions of this act.

$56. A copy of such petition shall be served forty days at least, copy of pe previous to the term at which the same shall be presented, on all the to be served. parties concerned in such lands, tenements or hereditaments, who shall not join in the said petition, or on the guardians of such as are minors, together with a notice subscribed by the petitioner and directed to each of the said parties, or their guardians as aforesaid, that an application will be made to the said court on some certain day in term, to be specified therein, or as soon thereafter as counsel can be heard, for the appointment of such commissioners as aforementioned: Provided, That if either of the parties to whom such notice shall be parties redirected, shall reside out of this territory, or cannot be found therein, or in case either of the parties interested in the premises shall be unknown to the petitioner, (to be made to appear in either case by affidavit,) then and in every such case, instead of a service of a copy of such petition and notice as aforesaid, on such absent or unknown party or parties, it shall be sufficient for the petitioner to cause a copy of such petition and notice to be previously published, for the space of three months, once in every week, in one of the public newspapers printed in the county in which the premises are situate, if any newspaper shall be published in said county, and in case there be no newspaper published in said county, it shall be sufficient that it be published in a newspaper printed at the seat of government, which publication shall be deemed a sufficient notice to such parties, though the names of some or all of them shall not have been mentioned therein; but nothing in this proviso shall prevent the personal service of a copy of the said petition and notice, on any party out of this territory, but such service shall be deemed sufficient as to the parties upon whom the same shall have been made, without any publication thereof as aforesaid.

Parties to

appear and

tion, &c.

$ 57. On presenting such petition, and proof being made by affiAnswer peti- davit, to the satisfaction of said court, that copies of such petition and notice have been duly served or published as aforesaid, the said court shall by rule order the parties interested in the premises who are known, to appear and answer the said petition within the usual time allowed for pleading in said court, and shall also by rule, order such of the parties as are unknown, or whose share or interest is unknown, to appear and show titles to the proportions which they may claim of the premises, set forth in the said petition, and to answer the said petition within the like time allowed for pleading as aforesaid; and such parties as are known, or any of them may within such time, or within such further time as the court may allow for

1

be pleaded.

the purpose, appear and answer the said petition, and such of the parties as were unknown at the time of presenting the petition, may within the time aforesaid allowed, appear and show title as aforesaid, and answer and plead to the said petition, as to a declaration; and thereafter the proceedings shall in all respects be conformable to this What may act, as if all the parties had been originally named in such petition, and such further pleadings may be thereupon had between the parties respectively, according to the rules and practice of 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 such of the parties as shall answer the said petition, may plead thereto, non tenent insimul, and give any special matter in evidence under the said plea, which might otherwise be 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 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 parties in such lands, tenements or hereditaments, and give judgment that partition thereof be made according thereto, or between such of them as shall have any right therein; and if it shall not appear to the court after the trial of any issues, or after judgment by default, confession or otherwise, against such of the parties as are known what part or interest any parties whether known or un- Court to give known to the said court, and who shall not have appeared or pleaded in the said cause, have in the premises, then it shall be lawful for the court to give judgment, that partition be made so far as the rights or interests of the parties who are known, have been ascertained; and the residue of the said premises shall remain, for the parties so unknown, subject to be divided between them, upon application to the said court, or otherwise, according to this act, or by consent of such parties at any future time: and after judgment as aforesaid, either on verdict, fault, confession, or otherwise, the court shall by rule appoint three reputable freeholders, commissioners. to make the said partition, quality and quantity considered, according commission to [the] respective rights and interests of the parties, to be adjudged as aforesaid; and in case there shall be any owners, who or whose interest shall be unknown, the court shall designate and describe the part or portion to remain for such owners: Provided, That such par- Partition no tition shall not preclude any person not named therein, and who shall to preclude claim any right or title to the premises in question, from controverting the right or interest of the parties between whom such partition shall have been made.

judgment.

To appoint

егв.

claims.

sworn and

ded.

$58. The commissioners to be appointed as aforesaid, shall, be- Commisfore they proceed to make such partition, be severally sworn or af- sioners to be firmed, (as the case may be) before an officer, honestly and impar- oath recor tially to execute the trusts reposed in them as commissioners for making partition of the lands, tenements or 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 the clerk of the said court, at or before the time of making the return by them of such partition as hereinafter mentioned; and the said com

To make

return.

missioners, or any two of them, shall forthwith proceed to make partipartition and tion according to the judgment of the court, and a return there of being made in writing by them, or any two of them, under their hands and seals, to the said court, and specifying therein the manner of executing their said trust, and describing the land divided and the shares allotted, as shall be directed by the judgment of the court; and the same being proved or acknowledged before any judge or justice of the said court, or before some officer authorized to take the proof and acknowledgment of deeds and conveyances by law, and such return being confirmed, judgment shall thereupon be given, that such partition be firm and effectual forever; and such judgment shall be binding and conclusive on all parties named therein, and their legal representatives, and also on all such parties interested as are not known, to whom notice shall have been given by publication as aforesaid, and their legal representatives, except as is declared in Court may the preceding section: Provided, That it shall be lawful for the get aside re- court, on good cause shown, to set aside the return of the said commissioners, and to appoint, as often as may be necessary, new com missioners, who shall in all things proceed as the other commissioners are herein directed to proceed, and the judgment thereupon to be given shall be of like effect, as if judgment had been rendered upon the first return.

tura.

Court may

order com

missioners

tain cases.

$59. If it shall appear by the return of the said commissioners, or any of them, to the said court, that the lands, tenements or hereto sell in cer- ditaments in question, are so circumstanced that a partition thereof cannot be made without great prejudice to the owners of the same, then it shall be lawful for the court to order the said commissioners to sell the premises in question, at public auction, to the highest bidder or bidders, after giving such public notice of the time and place of such sale as the said court may deem reasonable, and shall direct; and the said commissioners, or any two of them, having reported their proceedings in writing under their hands to the said court, and the court approving thereof, shall give judgment that the sale be valid and effectual in law, and shall, by rule, direct the said commissioners, or any two of them, to execute good and sufficient conveyances in law, to purchaser or purchasers, which conveyances shall be a bar, both at law and in equity,'against all the owners named in the said proceedings, and against such as are not named, and who have had notice given them by publication in the public papers, in the manner directed by this act, and all others claiming by, from or under them.

Collection

of costs and

$60. When all the parties interested in any proceedings under and payment this act, shall have been known and named therein, the costs and charges. charges attending such proceeding shall be paid by the petitioners presenting the same; and the said court on every final judgment to be rendered as aforesaid, for partition of such lands, tenements or hereditaments, 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 the 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 moneys arising from such sale, and due to the parties who ought to pay the same; but where any one or more of the parties interested shall have been unknown, and not named in the same, the court shall adjudge such of the parties as are known and named, to pay to the petitioner their proportions of the costs respectively, according to their respective rights therein, to be taxed, recovered and paid in manner aforesaid directed; and as to such of the parties as are not known or named, judgment shall be rendered that the residue of the costs which shall not have been adjudged against the owners who are named in manner aforesaid, shall be levied and collected (if no sale has been made) out of the proportion of the premises remaining undivided for such unknown parties, and for which residue, execution may issue against such proportion of the premises, and the same may be seized in execution, and so much thereof as shall be necessary to pay [the] aforesaid residue of the said costs, together with the sheriff's fees and other charges thereon, may be sold and conveyed on such execution, in like manner as if the same had been a writ of fieri facias issuing out of the same court, in a personal action against the owner or owners of such premises; and such sale and conveyance shall be equally valid and effectual, as if the owner or owners of the said premises so sold, had been known and named in the said proceedings, and the execution issued thereon {aforesaid.

order cer

interest.

how distri

$61. Where there shall be any owners interested, who are not Court may known or named in the proceedings under this act, then and in that tain moneys case, the commissioners, in case of a sale of the premises, shall bring the put out at moneys arising therefrom into court, and after deducting the costs and expenses adjudged according to the several proportions set forth in such judgment, it shall be lawful for the court to direct the moneys adjudged to such unknown owners, to be placed at interest, and secured for their benefit until claimed; and the residue of the moneys Residue, brought into court, shall be distributed among the owners that are bated. named, in the proportions adjudged to them respectively: the court may, in its discretion, require of all or any of the said owners, before they shall be permitted to take out of court any moneys arising from any such sale, to give security, to the satisfaction of the said court, Security to refund such money, with interest thereon, in case it shall at any required. time hereafter appear that they were not entitled thereto: And further, When all the parties interested shall have been known and named in the proceedings under this act, the moneys arising from every such sale shall be ordered, by the said court, to be paid by the said commissioners to the said parties, the [their] guardians or legal represen- Commissiontatives, in proportion to their respective rights in the lands, tenements to pay and 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 territory without such legal representative, the proportion of the said moneys due to every such party shall be put out to interest, on sufficient security on real property, by order and under the direction and control of the said court, for the benefit of such party.

ers

1

Court to ap

dians for

minors.

$62. It shall be lawful for the said court, for any of the purposes point guar- intended by this act, and before or after the commencement of any proceeding by virtue thereof, to appoint guardians for such of the parties as may be minors, whether such minors shall reside within or out of this territory; and the court, on appointing any guardians as aforesaid, shall, for the benefit of such minors, take sufficient security of every such guardian, by bond, conditioned for the faithful discharge of the trust committed to such guardian, and to render 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 Their pow. of said court; and the guardians of all minors so to be appointed, shall be, and hereby are, respectively authorized 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 having arrived at full age.

ers.

Compensa. Non of commissioners.

Joint tenants, &c. to have remedy by this act.

Writ of error may

$63. The commissioners so appointed, 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.

$ 64. All joint tenants, and tenants in common, who hold jointly or in common, for years, or for life or lives, and all joint tenants, or tenants in common, where one or more of them have estates for years, or for life or lives, with the other who have estates of inheritance or in fee, and each of them, shall have, in every such case, 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.

$65. On all final judgments to be given in any of the said courts, he brought upon any such partition being made, or upon the 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 said 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.

Act not to revive claim barred by

statute.

When partition or sale

titled to reversion.

$ 66. Nothing in this act contained shall be construed in any manner to authorize the revival or prosecution of any claim to lands which might otherwise be barred by the statute of limitations, or by 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.

$67. Whenever partition shall be made in the court aforesaid, binding on sitting as a court of chancery in this territory, or a sale shall take persons en place by virtue of this act, and either of the parties, plaintiff or defendant to such partition, shall have a freehold estate in the premises. as tenants by courtesy or in dower, or as other tenant for life, whether such life estate be created by act and operation of law, or by devise, grant or otherwise; and the person entitled to the reversion, remainder, or inheritance, after the termination of the particular estate, is