Gardner v. Luke

Headnote

In partition, an order for the sale of the premises may be made without a reference to the clerk to search for liens and encumbrances, unless such reference is asked for by one of the parties.

On applying for an order of sale in a case prosecuted in this court for the partition of lands, the counsel for the plaintiff submitted to the court the question whether, under the statutes for the partition of lands as found in the revised statutes and the act amending thé same, passed in 1830, it is compulsory that an order shall be entered requiring the clerk to ascertain and report whether the shares of the parties to the suit are subject to liens and encumbrances, or whether it is optional with the party prosecuting the suit to enter such rule, or omit to enter it, as he shall think proper. The counsel for the plaintiffs submitted the following view of the question:

By the revised statutes, 2 R. S. 324, § 42, it is required that the rule in question shall be entered; but this section is amended by tl;e act of 1830, Laws of 1830, p. 398, § 42, which makes it the duty of the court, on the motion of either party, to direct that persons having specific liens shall be

made parties, and that the clerk shall ascertain and report encumbrances. By the revised statute, it was not necessary to make creditors having liens parties to |he suit, 2 R. S. 318, § 8;, which provision is amended by the act of 1830, so that now it is not necessary in the first instance to make such creditors parties. By the revised statutes, conveyances after sales are declared a bar against all persons interested, who shall have been named as parties in the proceedings, 2 R. S. 327, § 61 ; which section is amended by the act of 1830, p. 397, § 45, declaring that such conveyances shall also be a bar against all persons having general liens, to whom notice has been given, and against all persons having specific liens who shall have been made parties to the proceeding. From which several provisions it was insisted that one object of the act of 1830 was to save expense in reference to searches for liens and encumbrances which it was apprehended would in many cases be very heavy ; that the order for such searches, which by the revised statutes was directory upon the court, is now optional with the party, it not being the duty of the court to make such order, except on the motion of one of the parties; and that no possible injury can result from the omission to make such order, as the sale and conveyance cannot affect persons having general or specific liens, unless notice has been given to them, or they have been made parties to the suit.

The counsel adverted to another provision of the revised statutes, by which it is enacted, that if there be a lien on the undivided interest of one of the parties, and partition be made, such lien shall attach to the share allotted to such party. 2 R. S. 318, § 9. By t}ie act of 1830, it is enacted, page 396, § 42, that where there is a specific lien upon the undivided share of one of the parties, and the creditor shall not have been made a party to the proceedings, the court, on the motion of either party, shall direct that the creditor.be made a party, and that the clerk ascertain and report whether the shares of the parties in the suit are subject to any general lien or encumbrance ; which provisions, it was remarked, still left it optional with the plaintiff whether he would or would not make the creditor a party ; and at all events that the act of 1830, in this respect, was not mandatory upon the court, except on

the motion of one of the parties. If 'the creditor is not made a party, his rights are not affected by the proceedings, and the only consequence to the party prosecuting the partition is, that if the premises are sold, they will be sold subject to such lien.