Partition how to be made. Report, to be acknowledged, and filed; when set aside. Final judgment; its effect. In making partition, the commissioners are required to divide the premises, and allot the several portions and shares thereof to the respective parties, quality and quantity considered by them, according to the respective rights and interests of the parties as adjudged by the court, designating the several shares and portions by posts, stones, or other permanent monuments; and they are allowed to employ a surveyor, with the necessary assistants to aid them.6 They are required to make a full and ample report of their proceedings, under the hands of any two of them, specifying therein the manner of executing their trust, and describing the land divided, and the shares allotted to each party, with the quantity, courses, and distances of each share, and a description of the posts, stones, or other monuments thereof, and the items of their charges." The report must be proved or acknowledged before some officer authorised to take the proof of deeds, in the same manner that deeds are required to be proved or acknowledged, to entitle them to be recorded, and it must be filed in the office of the clerk of the court. Setting aside report.] The court are authorised, on good cause shown, to set aside the report, and to appoint new commissioners as often as may be necessary. Such new commissioners are required to proceed in the same manner as is prescribed for their predecessors.9 is Final judgment on report.] Upon the report's being confirmed by the court, judgment is thereupon given, that such partition be firm and effectual for ever, and such judgment declared to be binding and conclusive, 1. On all parties named therein, and their legal representatives, who shall, at the time, have any interest in the premises divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder, or inheritance of such premises, after the termination of any particular estate therein; or who, by any contingency contained in any will, or grant, or otherwise, may be, or may become, entitled to any beneficial interest in the premises; or who shall have any interest in any undivided share of the premises, as tenant for years, for life, by the curtesy, or in dower: 2. On all persons interested in the premises, who may be unknown, to whom notice shall have been given of the application for partition by publication, as directed: and, 3. On all other persons claiming from such parties, or persons, or either of them.10 But it is declared, that such judgment and partition shall not affect any tenants, or persons having claims as tenants, in dower, by the curtesy, or for life, to the whole of the premises which are the subject of the suit; and that they shall not preclude any person except such as are specified in the last section, from claiming any title to the premises in question, or from controverting the title or interest of the parties, between whom the partition shall have been made." apportioned; Costs, and execution therefor.] When final judgment for Costs how partition is rendered, the court are required to adjudge each of the parties concerned therein, other than the petitioners, to pay to such petitioners, a proportion of the costs and charges of the proceedings, to be ascertained by the court, according to the respective rights of the parties, and the proportion of such costs assessed upon the unknown owners, to be chargeable on the part remaining undivided.12 tion there Upon such judgment, execution issues as in personal ac- and executions, and may be levied on the property of the parties respec- for. tively charged with such costs; and upon any share or part of the premises, allotted on any such division, to any owner un 10 Ib. s. 35. 11 Ib. s. 36. 12 2 R. St. 328. s. 72. When peti tioners to pay costs. known or not named, and upon every portion remaining undivided, for the proportion adjudged to be paid by such owners, or chargeable to the part remaining undivided. And it is declared, that a sale of such premises thereupon shall be as valid as if such unknown owner had been named in the proceedings, and in such execution.13 If the petitioners for any partition, become nonsuit, or suffer a discontinuance, or a verdict passes against them, or judg ment is rendered against them on demurrer, they must pay costs, which are to be recovered and collected as in personal actions.14 SECTION III. OF THE PROCEEDINGS UPON AN ORDER OF SALE. If partition prejudicial, Searches for incumbrances.] We have already noticed the manner in which any party to the suit may enter a rule, requiring the clerk to search for liens and incumbrances; and that, if such rule is not entered by a party, the court are required to make an order to the same effect, before any order for a sale is made. And we have seen in what manner the clerk is to execute such order. 15 Order of sale.] We have seen, that if it should appear to order of sale such commissioners, or any two of them, that partition cannot be made, without great prejudice to the owners, they are to make a return of the fact to the court, in writing, under their to be made. 13 Ib. s. 72. 14 2 R. St. 329. s. 73. 15 Ante, Vol. 2. p. 581, and sec 2 R. St. 324. s. 42, 43. hands." A subsequent section provides, that if the commissioners, so appointed, shall report to the court, that the lands, tenements, or hereditaments, of which partition shall have been so directed, are so situated, or that any distinct lot, tract, or portion thereof, is so situated, that a partition thereof cannot be made, without great prejudice to the owners of the same; and, if the court shall be satisfied that such report is just and correct, they may thereupon, by a rule to be entered on the filing of the report, order the commissioners to sell the premises so situated, at public auction, to the highest bidder.18 sale, must direct. The court are required to direct, in the order, the terms of Order of credit which may be allowed, for any portions of the purchase and what it money, of which it shall think proper to direct the investment, and for such portions as are required by the provisions of the statute, to be invested for the benefit of any unknown owners, any infants, any parties out of the state, or any tenants for life, in dower or by the curtesy." 19 It would seem, also, that when the estate of any tenant in dower, or by the curtesy, or for life, to the whole or any part or share of the premises in question, has been admitted by the parties, or ascertained by the court, to be existing at the time of the order for sale, and the person entitled to such estate has been made a party to the proceedings, the order of sale should state the determination of the court, whether such estate ought to be excepted from the rule, or ought to be sold.20 And it would appear, that if the person so entitled is unknown, the order of sale should be so drawn as to protect his rights, in the same manner, as far as possible, as if he had appeared.21 If the clerk has reported, on a reference to him for the purpose, that there are any existing incumbrances upon the estate or interest in the premises, of any party named in the proceedings in the suit, the court are also required, to direct in the How incum brancers to ment. order of sale, that the commissioners bring into court, and pay to the clerk thereof, the portion of the monies arising from the sale of the estate and interest of such party, after deducting the portion of the costs, charges, and expenses to which it is liable.22 Payment and satisfaction of incumbrances.] Where the obtain pay clerk has reported that there are existing incumbrances upon the estate or interest in the premises of any party named in the proceedings in the suit, and the portion of the monies arising from the sale of the estate and interest of such party has been paid to the clerk agreeably to the order of sale,25 he may apply to the court to order such monies, or such part thereof as he claims, to be paid to him.24 The application must be accompanied by the affidavit of the party, stating the true amount actually due on each incumbrance, the owner of such incumbrance, and his residence, as far as known to the party. It must also be accompanied by an affidavit of the due service of a notice on each owner of any incumbrance, of the intention to make such application, at least fourteen days previously.24 As to the service of the notice, if the owner of the incumbrance resides in this state, it must be served personally, or if he be absent from his residence, by leaving a copy there, with some person of proper age; if he resides out of the state, the notice may be served on him personally, twenty days previously to the application, or by publishing it in the state paper four weeks successively, once in each week.25 Upon such application and proof of notice being made, the court are required to proceed to hear the proofs and allega tions of the parties. If any question of fact should arise, which in the opinion of the court, cannot be satisfactorily determined without a trial by jury, the court are required to |