presenting. The notice of presenting the petition must state that the Notice of same will be presented to the court on some certain day in term,80 and must be directed to all the parties who are known, and whose interests are known, and to those who are known, but whose interests are uncertain, contingent, or unknown, by name, and generally, to all others unknown, having or claiming any interest in the premises. 81 vice, and on Service of the petition and notice.] A copy of the petition Time of serand notice must be served forty days previous to the term, on whom, all the parties interested in the premises, who have not joined in the petition, and on the guardians of such as are minors, appointed as above mentioned.82 blication; If any parties, having an interest in the premises, are un- when by puknown, or if either of the known parties, whether minors or of full age, reside out of the state, or cannot be found therein, and these facts are made to appear to the court by affidavit, the petition and notice may be served on such unknown or absent party, by publishing the same for three months previous to the presentation of the petition, once in each week successively, in the state paper, and in a newspaper printed in the county where the premises are situated, if there be any; and if there be none, then in a newspaper printed in the city of New York. This service is declared to be equivalent to a personal service on such known or unknown parties. state. But, with respect to a known absent party, instead of a or out of the publication, the petition and notice may be served personally, out of the state, forty days previous to its presentation, and the publication is not then necessary.83 pear, &c. Rule to appear and answer.] Upon the presentation of Rule to ap the petition, and due proof being made of its service or publication with notice, and of the facts justifying the mode of 80 Ib. s. 10. 81 31 2 R. St. 319. s. 11. 82 Ib. 318. s. 10. 83 2 R. St. 319. s. 12. to add defendants. Certiorari. Trials of issues, &c.; in case of amendments. Ilow made, &c. ings or proceedings, so as to make defendant thereto, any person who shall have appeared in the course of the proceedings, to be interested in the premises, by any will, deed, or grant from any person who is a defendant in the suit, and who might originally have been made defendant, if his interest had then existed or been known; but no person can be so made defendant without forty days notice of the motion to that effect being personally served on him, or published three months, as in case of an original application. 93 Removal by certiorari.] Proceedings for partition commenced in the court of common pleas, or in a mayor's court, may be removed into the supreme court by writ of certiorari, to be allowed by any of the justices of the latter court. But the removal cannot be made, unless the certiorari is served before any juror is sworn to try an issue joined, or before judgment is given that partition be made. Upon such removal, the like proceedings are to be had as if the petition had been originally presented to the supreme court." 94 Trials of issues, bills of exceptions, new trials, &c.] The statutes declare that all issues joined shall be tried, and the like proceedings for the trial thereof shall be had, and bills of exception may be taken, and demurrers to evidence filed, and the court may set aside verdicts and grant new trials therein, as in personal actions.101 And where amendments have been made, it is provided, that any party whose rights are affected thereby, and who bas not had an opportunity to sustain his claim, shall be entitled to have an issue made up and tried, to determine such right; and that the court may, after an amendment in any other case, where it may be deemed proper, order a trial to be had.95 Proof of title on default.] If the default of any of the defendants, whether known or unknown, has been entered, 93 Ib. s. 20. 932 R. St. 329. s. 74. 181 2 R. St. 320. s. 19. 95 Ib. s. 21. the court are directed to require the petitioners to exhibit proof of their title, and an abstract of the conveyances by which the same is held. Such proof may be taken in open court, or by the clerk thereof, on a reference for that purpose. And in either case, the proof given, and the abstract furnished, must be filed with the clerk.96 Judgment of partition.] From the proofs so taken in case Judgment. of a default; or from the confession, by plea of the parties, if they appear; or from the verdict of the jury by which any issue of fact shall have been tried, the court are required to ascertain and declare the rights, titles, and interest of the parties to the proceedings, plaintiffs as well as defendants, so far as the same shall have appeared; and to determine the rights of such parties in the lands, tenements, hereditaments, and to give judgment that partition be made between such of them as have any right therein, according to such rights.97 If after the trial of any such issues, or after judgment by default, confession, or otherwise, against those parties who are known, the part or interest of any parties who have not pleaded in the cause, whether known or unknown, in and to such premises, has not appeared by the evidence in the cause, the court are required to give judgment that partition be made, so far as the rights or interests of the parties who are known, and who have appeared in the cause, have been ascertained, and the residue of the premises are to remain for the parties whose interests have not been ascertained, subject to division between them at any future time.98 SECTION II. OF THE PROCEEDINGS FINAL AFTER JUDGMENT OF PARTITION, UNTIL JUDGMENT OF CONFIRMATION OF PARTITION, OR AN ORDER OF SALE. Rule ap pointing ers. Commissioners.] Judgment of partition having been rencommission- dered, the court are required, by rule, to appoint three respectable freeholders, commissioners to make the partition, according to the respective rights and interests of the parties, as the same were ascertained and determined by the Commission ers must be sworn; must all meet; if they die, &c. The rule must designate the part or shares which are to remain undivided, for the owners whose interests are unknown and not ascertained.10 100 The commissioners, before proceeding to the execution of their duties, must severally be sworn or affirmed, before an officer authorised to take affidavits, honestly and impartially to execute the trust reposed in them, and to make partition, as directed by the court; which oath must be filed with the clerk of the court, at or before the coming in of the report of the commissioners.1 All the commissioners are required to meet together, in the performance of any of their duties; but the acts of a majority so met are declared to be valid.2 If the persons appointed commissioners, or either of them, die, resign, or neglect to serve, the court are empowered, from time to time, to appoint others in their places. 99 Ib. s. 25. 100 Ib. 1 Tb. s. 27. 2 2 R. St. 322. s. 31. ses, &c. The expenses of the commissioners, including the expenses their expenof a surveyor, and his assistants, when employed, are to be ascertained and allowed by the court; and the amount of such expenses, together with the fees allowed by law to the commissioners, are to be paid by the petitioners, and allowed to them as part of the costs to be taxed.1 searches for incumbran Searches for incumbrances.] When commissioners have Order that been appointed to make partition, any party in the suit may ces enter a rule requiring the clerk of the court to ascertain and report, whether the shares or interests in the premises, of the parties in the suit, are subject to any lien or incumbrances, by judgment, decree, or mortgage, or sale under execution, or otherwise; and if such rule has not been entered by any party, the court are required to make an order to the same effect, before any order for the sale of the premises, or any part thereof shall be made." 101 clerk. It is the duty of the clerk, to whom the reference is made, be made by immediately to cause the necessary searches to be made, in all proper offices in which incumbrances may by law be docketed, filed, registered, or recorded, and to report, with all convenient speed, the names of the creditors, the nature of the incumbrances, the dates thereof, and the several amounts appearing to be due thereon. The clerk's fee, and the expenses of such searches, must be advanced to the clerk by the petitioners.10 partition; judicial, &c. Partition and report.] The commissioners are required To make forthwith to proceed to make partition according to the judgment of the court, unless it should appear to them, or any if not pretwo of them, that partition cannot be made without great prejudice to the owners, in which case they are required to make a return of such fact to the court in writing, under their hands.5 |