CHA P. XXXIX.

An ACT for the Partition of Lands.

Paffed 16th March, 1785.

WHEREAS many tracts of land in this ftate are held by divers per

fons as joint-tenants, tenants in common, and coparceners, and fuch tracts cannot by law be divided by reason of the abfence, infancy or coverture of fome of the proprietors, to the great detriment of the owners, and the prejudice of agriculture;

1. Be it therefore enacted by the people of the fate of New-York, reprefented in fence and affembly, and it is hereby enacted by the authority of the fame, Proprietors of undi- That any one or more of the proprietors of any tract or valed lands may fub- tracts, parcel or parcels of land which now are, or hereafter fcribe and publish a may be undivided, incline to have partition thereof, may fubfcribe a writing, and publifh the fame in any one or more of the public news-papers printed in the city of New-York, and one or more of the public news-papers printed in the city of Albany, except the lands to be divided, lie in the fouthern great district, in which cafe fuch advertisements may be published only in one or more of the news-papers printed in the city of New-York, twelve weeks, directed in general to all perfons interested in such tract or parcel of land, fpecifying the bounds thereof, and giving notice, that three commiffioners, not interefted in fuch tract or parcel of land, naming them and their places of abode, are appointed to make fuch partition, and that they will meet at a certain day and place, to be alfo therein mentioned, and to be within ten days after the faid twelve weeks are expired, to proceed to the partition of the faid lands, and requiring all perfons interested therein, to attend then and there for that purpose, either by themfelves or their attornies; and if no objection to any of the faid commillioners be offered in writing to any one of the judges of the fupreme court, or of the inferior court of common pleas of the county in which the greatest part of the lands lie, and a notice of fuch objection in writing ferved upon the fubfcriber or fubfcribers to the notice fo directed to be publifhed, or any one of them, and within nine weeks after the first publication thereof, then the commiffioners fo to be named, fhall perform the duties required of them by this act; but if fuch objection and notice be made and given, the judge to whom it was offered fhall appoint the parties a day and place, within ten days after nine weeks from the first publication of the notice are expired, and then and there hear and determine fuch objections, and appoint other fit and uninterefled perfons in the room of thofe he may think proper to remove as unft; and fuch perfons fo appointed fhall thenceforth be the commiflioners for executing the powers given to commiflioners by virtue of this act, and fhall, before they proceed to execute their offices, be feverally fworn, or if of the people called Quakers, affirmed, before one of the judges of the faid fupreme court, or before any of the judges of any inferior court of common pleas, to perform the truft and fervices required of a commiflioner by this act, fairly and impartially, according to the direction thereof, and the beft of h's fkill and judgment; and a certificate of their being fo fworn or atormed from the perfon adminiftring the oath, fhall be filed with the refl of the proceedings, as hereafter directed.

their appointment in

Coramiflioners to II. And be it further enaded by the authority aforesaid, give public rotice of That the fame commiftioners fo to be appointed, fhall af the newspapers, and terwards publifh a notice or adverti ement in one or more of the public news-papers printed in the city of New-York,

10 fix a time for their #keling.

and one or more of the public news-papers printed in the city of Albany, except the lands to be divided lie in the fouthern great diftrict, in which cafe fuch advertisment may be published only in one or more of the news-papers printed in the city of New-York, fignifying their faid appointment, and that at a certain day and place, to be mentioned, they will meet to proceed on the faid partition; and that they defire all perfons concerned to attend accordingly, which faid notice fhall be fo published fix weeks before the day of meeting. And when the commiffioners have afcertained who, and how many the patentees of the lands to be divided were, they fhall, as foon as conveniently may be, caufe a furvey to be made of the lands to be divided, in their prefence, and having fet apart fuch portion thereof as they conceive to be fufficient to defray the expence of the partition, the refidue fhall be divided into as many allotments as the commiffioners fhall judge beft, according to the quantity, quality and fituation of the land to be divided; after which they fhall caufe every allotment to be divided into as many lots as there were patentees, as nearly equal as poffible, having due regard in the partition to the fituation, quantity and quality thereof, fo that the patentees, and thofe holding their feveral rights, may have equal fhares in value, as near as may be. Provided always, That in fuch cafe where the patentees of any tract of land have added to the number of original owners thereof, by conveying or difpofing of fuch part or parts of their original undivided fhares to any other perfon or perfons, whereby the faid perfon or perfons and the faid patentees became feverally owners of equal undivided fhares of fuch tract of land, then, and in fuch cafe, the number of lots fhall be equal to the number of fuch patentees and other owners, fo vefted with equal shares with fuch patentees as aforefaid. And in cafe the bounds or extent of any lands hereafter to be divided by virtue of this act, fhall appear to be fo much controverted that the true quantity of the whole land to be divided cannot be afcertained clear of difpute, that then, and in fuch cafe, the faid commiffioners fhall caufe the undisputed lands to be furveyed and run out diftinctly and feparately from fuch part as fhall be in difpute, and fhall make diftinct and fparate allotments and divifions of the faid undifputed and disputed lands, in fuch manner as that a proportionate share of each, as nearly as may be, as well in quantity as in quality, may, upon the balloting hereafter mentioned, be drawn to the name of each patentee.

and maps of all fur

III. And be it further enacted by the authority aforefaid, Two true field books That of all furveys and allotments to be made by virtue of vets, to be made. this act, two true field books and maps, fpecifying the bounds of every allotment and lot, fhall be made, and the feveral allotments and lots laid down and numbered on the faid inaps, and then figned by the faid commiflioners; one of which faid field books and maps fhall be filed in the office of the clerk of the county where the greatcft part of the lands lay, and the other in the fecretary's office of this ftate; which when done, the faid commillioners shall caufe an advertisement to be published for at least fix weeks in one or more of the news-papers printed in the city of New-York, and one or more of the public news-papers printed in the city of Albany, exrupt the lands to be divided lie in the fouthern great diftrict, in which case tich advertisement may be published only in one or more of the news-papers [-nted in the city of New-York, notifying the filing of the field books and bar in the office, and appointing a particular time and place, on a day within twenty days after the expiration of the faid fix weeks, and requiring A perfons intereffed then and there to attend, to fee the feveral lots balloted

ch. 7.

for; and that the fame may be conducted in a juft and impartial manner, one or more of the judges of the fupreme court of this flate, or of the inferior court of common pleas of the county in which the greater part of the lands lie, not interested in the divifion, upon the request of the faid commillioners, in writing under their hands, ferved fix days before the time of meeting, fhall. Amended 14th feff. be prefent to overfee the balloting fo to be made; at which day and place, the faid commitioners having then made as many tickets as there are lots in each allotment, with one of the numbers of each lot on every ticket, and as many tickets as there are patentees and proprietors, with the name of one of the patentees or proprietors on each ticket; the tickets of names fhall be put into a box, and the numbered tickets into another box, and fuch perfon or perfons as the commiflioners fhall then appoint, shall immediately proceed to draw a ticket of the names, and then a ticket of the numbers, and fo proceed until all the tickets are drawn. And after drawing for the lots in one of the allotments, they fhall proceed in the fame manner to draw for the lots in the other allounent or allotments, if more than one, until the whole drawing is completed. And the lot in each allotment on the maps, bearing the number of the ticket drawn next after drawing the ticket with the name of the patentee or proprietor, fhall be the feparate and divided share of fuch patentee or proprietor, and of all perfons · holding under him or her: Of which balloting, and all the proceedings in fuch partition, the faid commiffioners fhall make a full and fair entry and minute in a book, one copy whereof, certified under their hands, or the hands of a majority of them, and under the hand of the judge prefent, fhall be filed in the faid fecretary's office, and another, certified in like manner, in the clerk's office of that county where the greatest part of the lands lay; which fame books, or an exemplification under the great feal of this ftate, fhall be good evidence of fuch partition; and which partition fhall be valid and effectual in the law, to divide and separate the faid lands.

Cominiffioners

fell the part reserved

and their deeds for the

IV. And be it further ena ed by the authority aforefaid, to That the faid commisioners, or any two of them, fhall, to defray expences, within one year next after drawing or balloting the lots fane to be valid. aforefaid, proceed to fell that part of the tract which was fet apart to defray the expence of the partition, at public vendue, to the highest bidder, whereof fix weeks public notice fhall be previ oully given in one of the faid news-papers; and their deed to the purchater fhall pass as good a title to fuch bidder, for the feparate enjoyment of the fame, as if all the patentees or proprietors of the faid land had made and executed the fame in due form of law. Always provided, That no commiffioner or commillioners, or any other perfon in truft for him or them, fhall become purchasers of the faid land fo to be fold, or of any part thereof. And of the whole charge attending fuch partition, the cominuiioners fall keep and ftate a particular account, and lay the fame before one or more of the judges of the fupreme court, or of the inferior court of common pleas of the county where the greatest part of the lands lie; who are hereby epowered and required to appoint fome proper perfon or perfons to audit the fame, after fourteen days notice given in writing by the faid commiffioners, to any three of the proprietors, of the time and place of auditing the faid accounts, that they may be heard in objecting to the fame; and out of the monies arifing by fuch fale, the commiffiones may retain fo much as the faid auditor or auditors, or the major part of them, fhall certify to be due to them for their fervices and disbursements in completing the faid partition; and the

furplus, if any there is, fhall be divided into equal parts, according to the number of patentees or proprietors as aforefaid, and be paid to them, or thofe holding under them; and the receipt of the faid patentees or proprietors as aforefaid, or of any perfon holding under a patentee, fhall be a fufficient difcharge to the faid commiffioners for the share of fuch patentees or proprietors. V. And whereas joint-tenants, tenants in common, and coparceners of particular lots or parcels of lands fo divided, or of other lands held in jointtenancy, coparcenary, or in common, may be inclined to have partition Particular lots to be thereof; Be it therefore enacted by the authority aforefaid, divided as other lands. That partition may be made thereof, and be as valid, and the expence of the fame defrayed in the fame manner as the partition of other lands are before directed; the proprietors in fuch further or other partition, being confidered as the patentees are in the partition above prescribed.

made, to pay for fach improvements.

provements made af

14th feff. ch. 7.

VI. And be it enacted by the authority aforefaid, That in Per fons drawing cafe on the partition of any patents or tracts of land, on lots on which improvements have been which improvements have heretofore been made by any owner or proprietor, or by any perfon or perfons, by conExtended to im fent of any owner or owners, proprietor or proprietors of ter palling this act, any fuch patents or tracts of land, the perfon or perfons to whofe fhares fuch parcels of improved lands fhall fall upon a partition of fuch patents or tracts of land, fhall, before he or they be permitted to the pofleflion of the fame, pay the refpective poffeffor or poffeffors thereof, the value of the improvements made thereon: And in order to fettle and afcertain the value of fuch improvements, the faid commiffioners are hereby fully authorited, empowered and directed, at the request of the party or parties to whom fuch parcel or parcels of improved lands, fhall, upon fuch partition as aforefaid, appertain, iffue their precept to the fheriff of the county in which the lands lie, commanding him to fummon twelve freeholders, having the proper and legal qualifications of jurors, to attend the faid commiffioners on the premises, at a day to be appointed in the faid precept, not exceeding thirty days after the date thereof, to affefs the value of fuch improvements; at which day and place the faid commiffioners fhall fwear the faid freeholders, well and truly to inquire into and affefs the value of the faid improvements, and then fhall proceed, with their afliftance, in a fummary manner, to inquire into, and affefs the fame, and make duplicates of fuch their inquifitions and affeffments, under their hands and feals, and the hands and feals of the faid freeholders; one of which faid duplicates fhall be delivered to each of the parties. And in cafe the poffeffor or poffeflors of fuch improved lands, fhall not, within thirty days next after a tender to him or them made of the affeffed value, by the perfon or perfons to whom the faid improved lands fhall, upon fuch partition as aforefaid, belong, peaceably and quietly deliver up to him or them, the poffeffion of the fame, the faid commillioners, or any or either of them, fhall, upon proof of fuch tender made before him or them, or any or either of them, by the oath of one or more credible witness, iffue a precept in writing, under the hands and feals of them the faid commiffioners, or the hands and feals, or hand and feal of any or either of them, to the fheriff of the county in which fuch improved lands refpectively lie, commanding him to put the perfon or perfons to whom fuch improved lands fhall, upon fuch partition, belong, into full and peaceable poffeffion of the fame. Provided always, That the cofts, charges and expences attending, as well on fuch affeffiment, as aforefaid, as on the putting of the party or parties into the poffeffion of fuch improved lands, fhall be efti

mated according to the regulations herein after prefcribed, and fhall be paid So in the original. by the refpective poffell or poffeffors of fuch improved lands, and on his, her or their refufal to pay the fame, fhall be levied on his, her, or their goods and chattels, by warrant under the hands and feals of the faid commiffioners, or the hand and feal of any one or more of them, directed to the faid fheriff of the county wherein fuch improved lands refpectively lie, who is hereby required to perform that fervice.

confidered as undivi

VII. And inasmuch as the faid commiflioners, in fuch further or other par tition, may, through the great number of proprietors and rights, proceed upon a mistake, either by fuppofing them too few or too many; Be it therefore Lots drawn to per- enacted by the fame authority, That if any lot or lots fhall be dons who have no title fet off and drawn for any perfon having no title to the lands ded, and perfons who to be divided, fuch lot or lots fhall be confidered as lands have title, and do not fill undivided; and if no lot or lots fhall be fet off and drawn draw any lots, not to be barred thereby. for any perfon having title, nothing herein fhall be conftrued to defeat fuch title. Provided nevertheless, That the partition fhall be con fidered as fully completed, to all intents and purposes, between all and every the other proprietors of the faid lands.

VIII. And be it further enacted by the authority af refaid, That if any of the commiffioners fo to be appointed to make any partition by virtue of this act, shall die before the fame is completed, their powers fhall veft in, and be exercised by the furvivors or furvivor of them.

IX. And be it further enacted by the authority aforefaid, That one of the faid commiffioners fhall be fworn as furveyor, previous to the faid furvey to be performed (or if of the people called Quakers, fhall make affirmation) to perform the fame truly and impartially, and accordingly execute the duties of furveyor; which faid oath, or affirmation, either of the other two commiftioners are hereby empowered to adminifter, and which oath, or affirmation, fhall be entered in the minutes of their proceedings, and certified by the other two commiffioners, and that one other of the faid commiffioners fhall act as a clerk, and as fuch shall take minutes of all their proceedings.

X. Provided always, and be it enacted by the authority aforesaid, That in cafe the faid commiflioner, being a furveyor as aforefaid, fhall die before the furvey be completed, or through fickness, or fome other caufe, be rendered incapable to complete the fame, that in fuch cafe, the furviving commiflioner or commiflioners fhall, and may thereupon nominate, appoint, and qualify another furveyor to carry on and complete the fame : Or in cafe either of the faid commiffioners be a furveyor, he fhall and may be qualified and act as furveyor, and complete the furvey in like manner: Which faid furveyor fhall have twenty-eight fhillings per day, for his fervices. That the faid commillioner acting as furveyor, fhall have twenty-eight fhillings per day; the commiffioner acting as clerk, twenty-eight fhillings per day; and the other of the faid commiffioners, twenty-four fhillings per day, while actually em ployed in the faid fervice; and each of the chain-bearers, and the flag-bearer and marker (whenever the commiflioners fhall think fuch flag-bearer or marker neceffary) fhall have ten fhillings per day; and the perfons who audit the accounts, twenty fhillings per day, for their fervices: Which allowançes fhall be in full for their fervices, and all expences attending the faid furvey; but the auditors may allow a reasonable fum for defraying the expence of the attendance of the judges, the advertising and balloting herein before directed.

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