Majority
p. 113Thomas Candy, vs. David Stradley, Robinson Walker, John Brown and Thomas Collins. Kent, Feb. T. 1820.
Headnote
A decree for partition will not be made unless either all the parties entitled shall have joined in it, or a summons shall have been issued for those not joining. It is not sufficient that an appearance-gratis, and consent to a partition for the parties not joining, is indorsed on the petition.Petition for Partition.—This was a petition for the partition of certain real estate held by the petitioner and other persons as tenants in common. The prayer of the. petition was that a decree for partition be entered, and that a commission be issued, pursuant to the Statute in that behalf. No summons in partition had been issued; but on the back of the petition was the following indorsement, made by the Register in Chancery, viz. : “ 1820, “ February 25, David Stradley, Robinson Walker and “ John Brown appear gratis, and Thomas Collins also “ appears gratis, and they agree that partition be made. ”
The Act of Assembly requires that all the parties should join in the petition or that a summons should he issued, directed to the persons who may not have joined. I consider that one or the other of the courses directed by the act must be followed; and the more strongly in this case, as one of the parties is an infant.
The decree was refused.