thereof have less than their share of the real estate, as a committee appointed to make partition shall award.

IV. Proceedings when, in the partition of a deceased person's estate, an interested party refuses to pay his proportion of the charges of partition.

When partition or division shall be made by any judge of probate, of the real estate of any deceased person, agreeable to the method before prescribed, and any one or more of the interested party, shall neglect or refuse to pay their just proportion of the charge which may attend such division or settlement, it shall be lawful for the judge to issue a warrant of distress against any delinquent or delinquents interested, provided an account of such charge be first laid before the judge, and the just proportion of the person interested, settled and allowed, they having been duly notified to be present at suchsettlement or allowance.

V. Proceedings on application for partition.

Ibid. s. 14.

Stat. 1783, c. 41, s. 1.

Power of the S. J. C.

application for parti

By statute it is enacted, that any person or persons interested with others in any lot, tract of land, or other real estate, making application (either by themselves or and common pleas, on their agents, attorneys, or guardians,) to the supreme tion. judicial court of this commonwealth, or court of common pleas, of the county in which such land or other real estate lies; the said courts are severally authorized and empowered to cause partition to be made of such lands or other real estate, and the share or shares of the party or parties applying for the same, to be set off and divided from the rest. The partition to be made by five or three freeholders, under oath, to be appointed by the said court, who shall order the partition, and a return of such partition to be made into the clerk's office of the said court; and the partition or division so made, being accepted by the said court which ordered the division to be made, and there recorded, and also recorded in the re

Ibid. s. 3.

Parties interested to be notified.

gistry of deeds, in the county where such estate lies, shall be valid and effectual to all intents and purposes.

The same statute has further enacted, that neither of the said courts shall proceed to order such partition, until it shall appear to them respectively, that the several persons interested in such estate, and living within the state, or the attorneys of such as are absent, and have attorneys residing in the state, have been duly notified of such petition (by being personally served with a copy thereof, or a copy left at their dwelling-house, or last place of abode, or that the substance of the petition shall have been inserted three weeks successively, in one or more of the public newspapers) and have had opportunity to make their exception to the granting the same.(5) Provided nevertheless, that before partition be made, where any infants, persons non compos mentis, or otherpointed to minors, wise incapacitated to take care of their estates are inter

Ibid.

Guardians to be ap

and persons otherwise

incapacitated, and

ed for persons absent.

agents to be appoint. ested, guardians shall be appointed for all such persons, according to law, if they live within this state; and if any person or persons interested in any such estate happen (at the time when such application shall be made) to have been beyond sea, or out of this state for the space of one year, and not returned, and having no sufficient attorney within the same, in such case the said court to whom application shall be made for partition, shall appoint some discreet and disinterested person or persons, as agent or agents for such absent party or parties, to be advising on his or their behalf in making such partition; and due notice shall be given by the committee to all concerned (that are known and within the state) before such partition be made, that so they may be present (if they see meet) at the time of making the same. Provided also,

(5) Upon a petition for partition, and public notice, pursuant to the statute, the right of possession of one claiming to hold in severalty part of the land described in the petition, and of which partition is prayed for, is bound by the judgment of partition. Cook v. Allen, 2 Mass. Rep. 462.

that no partition be made where any partner shall be beyond sea, and shall not have been absent twelve months, and shall be expected to return within six months.

VI. Of the pleadings, trial, judgment and costs, in such

case.

Pleadings of the

By an additional act it is provided, that (whereas no Stat. 1786, c. 53. provision is made, by the act (6) for determining the Preamble. material facts set fourth in the petition for partition in case the same are controverted by any tenants in common) when the facts alleged in any petition for partition, Ibid. s. 1, to be preferred in consequence of the said act, are controverted by any of the tenants in common, the answer ties. or objection to the petition shall be made, in writing, in the form of a plea, to which the petitioner may reply or demur, to the end the matter in dispute may be reduced to an issue in law or fact, and receive a determination by the court or a jury, in the manner other issues are determined. (7)

(6) 1783, c. 41.

(7) In Cook v. Allen, 2 Mass. Rep. 473, it was urged by counsel, that this additional act authorizes only a tenant in common to controvert the petition. But per Cur. "If these words are taken strictly, then this act does not extend to the case of joint-tenants and parceners. But taking the two statutes together, and considering that it was the intent of the last statute to change the amicable remedy given by the first act, into an adversary suit, we are satisfied that any person, who is described in the petition as holding the land together and undivided with the petitioner, and as such is notified to appear and answer, may controvert any material allegation of the petition, and be permitted to defend his own interest, whatever may be its nature."

In the same case it was also urged by counsel, that the additional act contemplates no other issues in fact, but whether the petitioner holds the same, or a less share than he has alleged, and therefore no one can plead to the partition, unless he admit the petitioner to have some undivided interest. But per Cur. "This reasoning is founded on a mistake of the intent of the statute. By the first paragraph any

par

bid.

And in case the issue be determined in favour of the

Judgment where the petitioner, judgment shall be entered up by the court, that partition be made by disinterested freeholders as the

verdict is for the petitioner.

plea may be filed, on which an issue in fact or in law may arise, and the provision of the statue, when the petitioner is found to have a less share than he claims, is intended to alter the common law. At common law, if on a writ of partition the jury had found that the parties held together, but the plaintiff held a less share than he had claimed, he could have no partition on that writ: but by this provision, if it be found that the petitioner holds a less share than he claimed, he shall have partition according to his right. Upon this construction of the statutes, a complete and reasonable mode of obtaining partition is provided. The petition is the foundation of an adversary suit, in which all persons, having any interest in the land whatever, may appear and defend their interest. And the judgment has the same effect as a judgment on a writ; it binds the right of possession of those persons only, who are or might have been parties to the writ."

Furthermore, by the court, in the same case, “ In a writ of partition at common law, the general issue is, that the parties do not hold together, in manner and form, &c. and as partition must be made among all the parties, the jury are to inquire of the share of each party. If in a suit by petition the co-tenants are all named, the plea, at common law, is proper, but as the petitioner's share only is to be severed, the inquiry of the jury, if the issue be joined, is confined to the ascertaining of his share; and the jury may find that the petitioner is seized in an undivided interest in all the land, or in part of it only, or in no part of it; or, if seized of any part, that he is seized of a less share than he claims, according to the evidence in the case. If the parties interested are not known, any person concerned in interest may appear and plead; but the plea must conform to the petition, and the same inquiry must be made by the jury, if the issue be joined. In this last case, as it was not the intent of the statute, that the title of the petitioner should be controverted by any stranger in interest, to this plea the petitioner may reply, that the party pleading it has no estate or interest in the lands described, and may pray judgment, if he shall be received to defend against the petition. And if an issue in fact be joined on this replication, and tried, the verdict will be conclusive as to both parties."

law directs, and proceed to appoint them accordingly.(8) And also that the petitioner recover against the adverse party the costs attending the trial, and may issue execution for said costs, in the form prescribed by law, as in other cases.

Judgment, where it is

petitioner has a less share than he has alleged.

But if, on such pleading it be determined, that the pe- Ibid. titioner holds a less share or proportion in common and undivided, than he has in his petition alleged, the adverse determined that the party shall recover against the petitioner his reasonable cost, notwithstanding judgment may be rendered in favour of the petitioner to have an assignment of such part of the real estate in severalty, as he, in fact, holds in common and undivided.(9)

Ibid. s. 2.

In what county the

The trial of the fact by a jury, whether the petitioner holds in common, in the same proportion he alleges in his petition, or in a lesser proportion, shall be determin- trial must be had. ed in the county where the lands lie, unless the parties shall expressly agree to the contrary; in which case, the trial by jury may be had in such county as the parties agree upon.(10)

VII. Of the right of appeal in such case.

By the same statute, either party may appeal from the judgment of the court of common pleas, that partition shall be made, to the supreme judicial court, before the appointment of freeholders to make partition. But if no

(8) If upon a petition for partition, the parties agree to certain commissioners to make the partition, there is no need of a judgment for partition. Symmonds v. Kimball, 3 Mass. Rep. 299.

The commissioners need only assign the petitioners purparty.

Ibid.

If they return that they have been duly sworn, it is sufficient without other evidence of the fact.

lbid.

(9) No costs are given upon a petition for partition, except where an issue is joined and tried.

Ibid.

(10) A petition for partition ought not to include lands lying in different counties. 4 Mass. Rep. 122.

Ibid.