Jackson ex dem. Antell v. Brown — 3 Johns. 459

Majority

p. 459

Jackson, ex dem. Antell and wife, against Brown.

NEW-YORK,

Nov. 1808.

Headnote

Where one of several tenants incommonhad ^re^and uíe plaintiff in pared as ifno^udi ;'-henatI0n had been made, by giving notice co-temmt^ with°.ut taking no-tics of the grantee, the ®^ held to be void. of theplamtiff re-judgment of and^twasheld’ that lie could not, in such case, recover his undivided share, without deducing a regular title, as if no such judgment of partition had been rendered.

THIS was an action of ejectment. The cause was tried at the Herkimer circuit, in 1807, before Mr. Justice Van Hess, The lessors of the plaintiff claimed 65 acres of land, off the north end of great lot no. 10. in GlerHs pur-' chase, of which the defendant was in possession.

The premises in question are comprehended in 375 - acres of land, which belonged to the heirs of Alexander Golden, deceased, being six in number, as tenants in common. In February, 1805, a petition for the partition of "iii • • the land was made,- ot which due notice was given for the ensuing May term, according to the statute, to Cadwallader R, Colden, as entitled to one-third part; and some of the co-tenants residing out of the state, the petition and notice were duly published, as the act directs, It appeared that on the 8th July, 1802, Cadwallader R, Colden had sold and conveyed to the defendant all his undivided share and interest in the land so held in common ; , T , - . , . . . . but the defendant was not named m the petition, nor was

p. 460

any notice thereof given to him. As Cadwallader R. Col-den did not appear, judgment of partition was rendered in February term, 1806, by which the premises in question were set off and assigned to one of the lessors of the plaintiff. The defendant resided on part of the land, at the time of the partition, and claimed to hold possession of the premises under the deed from C. JR. Colden.

A verdict was taken for the plaintiff, by consent, subject to the opinion of the court, on a case containing the facts above stated.

Two questions were raised for the consideration of the court.

1. Whether the want of notice to the defendant, to. whom one of the co-tenants had conveyed previous to the petition, avoided the partition ?

2, If the partition was void, were not the lessors of the plaintiff entitled to recover an undivided share, as tenants in common ?

Gold, for the plaintiff.

If the objection of the defend-, ant of a want of notice is to prevail, it may produce much inconvenience. Co-tenants may aliene, a day before the judgment in partition, which may be thereby defeated; for the statute contains no provision for such alienations. The act binds parties and their legal representatives, and the defendant may be considered as the legal representative of C. R. Colden. The proviso in the supplementary act does not avoid the partition, in relation to parties not named in the partition, but declares that they shall not be concluded from controverting the interests of the parties who apply for the partition. Again, as the petition and notice to the other tenants were published in the gazette, this ought to be considered as sufficient notice to the defendant. But if the partition was not valid, the lessors of the plaintiff are entitled to recover one undivided sixth part, as one of the heirs of Alexander Colden ; and this would be perfectly consistent with the deed to the defendant, which is only for the undivided interest of C. R. Colden.

p. 461

Griswold, contra.

The plaintiff ought to • have shown a regular title ; but he produced only a judgment of partition, and if that is void, he must wholly fail. The supplementary act provides for the difficulty which has been suggested, by directing a particular mode of proceeding, where any of the tenants in common are unknown to the party applying for a partition. The defendant was the party in interest, and entitled to notice* As the plaintiff has failed in proving any such notice, or that he has proceeded according to the act, he cannot recover.

delivered the opinion of the court. Two questions arise in this cause.

1. Whether the want of notice to the defendant, being a co-tenant, does not avoid the partition ?

2. If the partition cannot be maintained, whether the lessors of the plaintiff, or either of them are, notwithstanding, entitled to recover an undivided part, as tenants in common ?

By the first section of the act for the partition of lands, passed the 7th April, 1801,^[1] it is directed, that á copy of the petition shall be served, 40 days previous to the term in which the same shall be presented to the court, on all parties concerned, who shall not join in such petition, and shall reside in the state, together with a notice subscribed by the petitioners, and directed to the party, that an application will be made to the court for the appointment of commissioners to perform the duties stated in the act. By a supplementary act, passed the 9th April, 1804^[2] , relief is given to tenants in common where any of their co-tenants, and the extent of their interest in the premises, are not known, by making it the duty of the court, on a suggestion of the facts, supported by an affidavit, to direct a publication, and the form thereof. These being express provisions by statute, this court cannot dispense with them, by any intendment.

The personal service of the notice on Cadwallader R., Colden, who had previously parted with his interest to the defendant who resided in the state, cannot be deemed a

* Laws N. Y. v. 1. p. 542.

† † L. N. Y. p. 285.

p. 462

a sufficient service. The defendant was entitled to personal notice under the statute, unless the parties had com - plied with the provisions contained in the supplementary act. This has not been done ; no such suggestion appears; in the proceedings of the partition, either by affidavit or otherwise.

There can be no doubt that the parties petitioning considered C. R. Colden as possessing the share originally held by him, and had no knowledge of the defendant’s interest. This, however, cannot affect the right of the defendant., Under the act; and the omission to comply with its directions in bringing the defendant properly into court, so as to make him a party, renders the proceeding wholly inoperative, and, consequently, destroys any right the lessors might otherwise have under the partition.

It does not appear that any title was produced, except what appeared from the proceedings of the partition. As-these were void, for the reasons already mentioned, the lessors of the plaintiff have not made out their claim to any part of the premises.

The Court are, therefore,- of opinion, that the defendmit is entitled to judgment.

Judgment for the defendant;