Majority
Headnote
Where partition of real property is made by proceedings by petition under the statute, the purchaser will not be compelled to complete his purchase.I think it would be contrary to that caution upon which we have always acted in relation to applications of this kind, to compel the purchaser in this case to complete his purchase. There seems to be a considerable diversity of opinion, whether a partition of real property can now be .effected -by a petition.
According to the opinion of Mr. Justice Pratt, in Croghan agt. Livingston, (17 N. Y. R., 218,) this mode of proceeding is abolished. He deems the proceedings by summons and complaint the only existing form of remedy for partition. This might be considered a dictum, not having been necessary to the decision of the question before the court at the time. But the point seems to have been careftilly considered by the judge, and his opinion is unhesitating and unqualified. The same opinion has been expressed by other judges, and it is a very prevalent one in the profession. Without venturing now to say that it is well founded, the doubts referred to make it safer and more in conformity with our usual course not to compel the purchaser, under such circumstances, to complete his purchase.
I think the order should be reversed, the purchasér relieved, and his deposit repaid.
Leonard, J. I concur.