Pritchard v. Dratt

Headnote

Partition — the omission of a plaintiff to allege that the pao'ties do not own, any other . land in common in this State is not a ground of demm'rer — General Buie Wo. 65— effect of a failure to comply with it.

Appbaí from a judgment, entered upon a décision of the Wayne County Court sustaining a demurrer to the plaintiff’s complaint.

The action was brought for the partition of lands located in the county of Wayne which are described in the complaint as one parcel.

All tbe defendants join in a demurrer wbicb is interposed upon tbe grounds that it appears from- tbe face of tbe complaint that tbe same does not state facts sufficient to constitute a cause of action. •

Tbe court at General Term, after overruling one of tbe grounds upon wbicb the demurrer was interposed, said: “ Tbe complaint alleges that three of tbe defendants who are tbe children of Abram M. Dratt, deceased, are infants. Upon this averment the defendants base another argument in support of their position, that tbe complaint does not state a cause of action, for tbe reason that there is a want of. an averment that tbe parties to tbe action do not own other lands in common as required by tbe last paragraph of the sixty-fifth standing rule of tbe court. Tbe rules of tbe court do not give nor can they take away or abridge a right of action secured to tbe parity by tbe common or statutory law of the land. There is no provision in tbe statute relative to the partition of lands among tenants in common, wbicb requires that all tbe lands owned by tbe parties to tbe action as joint tenants, or tenant in common, shall be embraced in one suit.

“ Section 1532 provides ‘ where two or more persons bold and are in possession of real’ property as joint tenants or as tenants in common, vin wbicb either of them has an estate of inheritance or for life or for years, any one or more of them may maintain an action for tbe partition of the property according to tbe respective rights of tbe persons interested therein.’

“ It was not tbe purpose of tbe rule to establish a rule of pleading, or to deny a partition in any case if all tbe lands owned by tbe parties, as tenants in common, were not made tbe subject of partition in tbe pending suit.' If such was tbe aim of tbe rule then tbe court was without power to make it, for tbe reason that it exacts as a condition to granting relief that which tbe statute does not demand. Tbe object of the rule is to protect parties from tbe burden and annoyance of a multiplicity of suits when they are tenants in common of several tracts or parcels of land, lying within this State, and if an action should be brought by one of the tenants in .common for a partition of a separate parcel he might be charged with all tbe costs of tbe suit unless tbe same was with tbe consent of tbe other parties in interest: tbe last paragraph requiring that when infants are interested and made parties, tbe petition shall state whether or

not tbe parties owned other lands in common, was inserted for the purpose of having the fact appear on the face of the pleading, and so be less likely to escape the attention of the court when disposing of the question of costs. At most an omission to make an averment in compliance with the rule is a mere irregularity in procedure which cannot be taken advantage of by demurrer.”