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parties re-
side out of
the state.

Forty days
notice to
and non-
agents, etc.,

wise the court shall order and direct notice of such demand of such partition to be given, either

by publication in one or more newspapers printgiven when ed in this state, where the parties concerned re

side out of this state, or by personal notice to be served at least forty days before the ensuing term, if the party or parties concerned reside within this state: Provided always, That where the person or persons, of whom partition is demanded, reside out of this state and have an agent or attorney residing within this state, such personal notice of such demand of partition shall be given to such agent or attorney, as is required in the case of resident proprietors.

Sec. 3. And be it further enacted, That if the first or any succeeding term (in case a continuance hath been granted) after the filing of such petition, it shall appear to the court, that due notice hath been given, and if no sufficient reason shall appear why partition should not be made, the court shall proceed to order such partition, and shall issue their writ, directed to the sheriff of the county in which the estate or estates shall or may be, or to the sheriff of either of the counties in which the estate or estates shall or may be, in case such estate or estates is or are in more than one county, com

When due potice bath been given, duty of the court.

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manding him, that by the oaths of three judi. To appoint
cious and disinterested freeholders of the vicin- sioners.
ity, to be appointed by said court, who are not
of kin to any of the parties concerned, cause he
to be set off and divided, to the demandant in
said petition, such part and proportion of
such estate estates as the court shall
have ordered and directed; and in making such
partition, it shall be the duty of said freehold-
ers, to view and examine such estate or estates,
to set apart the same in such lot or lots as will
be most advantageous and equitable, having Their duty.
due regard to the improvements, situation and
quality of the different parts of such estate or
estates, and if the bounds or title of any tract
or tracts, or any part thereof, shall be contro-
verted, it shall be the duty of the said freehold-
ers to separate the same from the uncontrover-
ted part, and to make partition of the estate or
esates in such manner, that a due proportion of
the controverted, as well as of the uncontrover-
ted part may be allotted to the demandant.

Sec. 4. And be it further enacted, That if at Parties
any time after the filing a petition as aforesaid, make parti-
and before a writ shall have issued to the sher- petition,
iff, the person or persons, joint tenants, copar. costs.
ceners or tenants in common, of whom partition
is demanded, shall appear by him or themselves,
or by his or their attorney, and shall pay the

etc., to pay


When the
estate can-
not be di-
vided, etc.,
to return
the ap-

costs which have accrued on such petition, and shall consent to a partition of such estate or estates, then partition shall be made of such estate or estates, by such person or persons, as said joint tenants, coparceners or tenants in common shall agree upon, and in case they do not agree upon any person or persons to make such partition before the end of the term, then a writ shall issue to the sheriff as is hereinbefore provided

Sec. 5. And be it further enacted, That when any writ of partition shall issue as aforesaid, if the inquest who are directed to make such partition shall be of opinion, that the estate or estates cannot be divided according to the demand of the writ, without prejudice to or spoiling the whole, the said inquest shall then make and return to the court a just valuation, and appraisement of such estate or estates, whereupon, if

the said court shall approve of the said return, Duty of the and if any one or more of the parties shall elect

to take the said estate or estates at the apelect to take praised value, the same shall be adjudged to him

or them, he or they paying, or securing to be paid to the other parties, their proportions of the appraised value, according to their respective rights; and the sheriff shall, according to the said order of court, make and execute con

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court when
one of the
parties shall


Sheriff to


order lands,


veyances to the party or parties electing to take
the same, subject nevertheless to a lien thereon,
in favor of the others of the said parties, until
payment be made to them of their respective
shares of the money as aforesaid; and in case
the said parties shall not agree who shall take Parties not
the said lands and tenements on the terms court to
aforesaid, then the said court shall or may, at etc, to be
the instance of the demandant in the said parti-
tion, make an order for the sale of the said lands
and tenements, at public auction, by the sheriff
who shall have bolden the said inquisition or his
successor in office, after due and fair notice of Notice to be
the time and place of such sale, by advertise-
ments published and set up in the several coun-
ties where the lands lie, and also such public
newspapers as shall be most likely to give fair
and full notice of such sale to all the parties con-
cerned and others, which public notice shall be
given at least twenty days before the time of
sale, in cases where the lands all lie in the same
county, and at least sixty days where the lands lie
in different counties; and the said sheriff is here. Sherif to
by empowered and ordered, to execute deeds to deeds to
the purchasers of the lands and tenements so as etc. on re-
aforesaid sold, on receiving payment of the con- money or
sideration money, or taking sufficient security
therefor, to the satisfaction of the court, which
money or securities shall be brought into court,

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Courts to
make dis-

When per
sons ap-
pointed or
agreed on to

tion, their

before or at the time of the said sheriff's acknowledging the deed in open court, to be distributed and paid by order of the said court, to and amongst the several parties entitled to receive the same, in lieu of their respective parts and proportions of the said lands and tenements, according to their just rights and proportions.

Sec. 6. And be it further enacted, That where

any writ of partition shall issue, or where the make parti parties interested shall agree on some person

or persons to make partition, it shall be the duty of the inquest or persons so agreed on, to make a true and accurate plan or map and field book of such lands as may be so divided, and to describe particularly, the metes and bounds of all tenements so divided and aparted, which plan or map, field book and description, the persons or inquest shall sign and send, under seal, to the next court having cognizance of the same, and after division and return thereof shall be made to the court, it shall be examined by the court, and if found justly and accurately made, the clerk shall record such return, which record shall be deemed as valid and effectual in law for the partition of such lands, tenements or here. ditaments, and thereupon the party or parties

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