The New York Practice: A Treatise Upon Practice and Pleadings in ..., Volume 2

Return of referee.

When the person is duly produced before the referee, and is identified, the referee will make his return to the court, stating that the person upon whose life, &c., the prior estate in the lands, &c., mentioned in such petition, depended, was produced pursuant to the order of the court; and if such referee was personally acquainted with such person, or if his identity was proved by other witnesses, he should report according to the fact; and in case testimony was taken, should report the same by setting it forth in his report. And if the person was not produced, such fact should be stated in the return.1

Upon the return and filing of the report of the referee, when it shall appear that the order of the court has been complied with, the proceedings are to be discharged, and an entry of the return is to be made upon the minutes of the court; aud an order that the costs of the proceedings be paid by the applicant should be obtained and entered.*

Where it appears by the return that the person was not produced, and there is proof of the due service of notice of the order made in the premises, upon the party against whom it was issued, as herein required, the statute provides that in such case the person shall thereafter be taken as dead, and the party entitled may forthwith enter upon the lands and tenements in the same manner as if the person were actually dead.3

When the person to be produced reside beyond the jurisdiction of

the court.

When the person upon whose life such estate depends resides out of the state, and the party against whom this proceeding is instituted shall, by affidavit, make it appear to the court, in any stage of the proceedings, that the said person is, or lately was, at some place certain beyond the sea, or elsewhere out of the state, the proceedings must cease, unless the party prosecuting the same will, at bis own cost and charges, obtain a commission to be issued out of the court, to be directed to one or more commissioners, to be appointed for that purpose by the court, residing at the place abroad named, to obtain a personal view of such person.4

If the commission is appointed, notice must be served upon the opposite party for a period varying according to the place where its inquisition is to be held. If it be in either of the states of the Union, or in either of the Canadas, at least two months' notice must be given; if within either of the West India islands, at least three months' notice must be given; and for all other places at least four months' notice must be given.1 The commissioners thus appointed abroad possess the same powers and proceed in the same manner as if acting within this state, in this proceeding.3 And their return is to be received by the court, and the effect of their return is to be the same as if made by a referee of the court within this state.3

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Other proof that such person is still living.

Notwithstanding such person may have not been produced before such commissioners, the party against whom such proceeding is instituted may show to the court, by affidavit, that the person is or was living, at the time of any return made by any commission appointed under these provisions, and that such party used his utmost endeavors to procure the attendance of such person before the commission, according to the exigency of the order, but that he could not produce or compel the attendance of such person.4 And the court, being satisfied of the truth of such representation, may order an entry to be made upon the minutes, declaring that there is no reason. to presume the death of such person, and that all further proceedings on such application cease.5

..-..>.i:,'vj :«l!j.JK f*'/r Evidence.

A copy of any entry made in the minutes of the court in this proceeding, duly certified, is to be received as evidence of the facts therein stated, in all the courts of the state.'

Costs, when not otherwise provided for in this act, are to be adjudged to either party, in the discretion of the court.7

Restoration of the estate.

When a party has taken possession of any estate under the provisions of this act, upon the presumption of the death of the person upon whose life such estate depended, and it shall subsequently be ascertained in any action that such person is still living, the premises is to be restored to the party entitled,1 and the person so evicted, or his executors, &c., may recover the full profits of the estate during the time of such eviction, &c.3

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CHAPTER XXIV.

PARTITION.

The statute provides that where several persons shall hold and be in possession of any lands, tenements, or hereditaments, as joint tenants, or tenants in common, in which one or more of them shall have estates of inheritance, or for life or lives, or for years, any one or more of them, being of full age, may apply for a division and partition of such premises, according to the respective rights of the parties interested therein; and for a sale of such premises, if it shall appear that a partition thereof cannot be made without great prejudice to the owners.3

Whether, since the Code, the proceeding for partition must be by action, or whether the proceeding by petition may also be adopted has not been definitely settled. The better opinion seems to be, however, that the proceeding should be by action under the Code.4 The Code declares that the provisions of the Eevised Statutes relating to the partition of lands, tenements and hereditaments held by joint tenants or tenants in common shall apply to actions for such partition brought under this act, so far as the same can be so applied to the substance and subject matter of the action, without regard to its form.8

Since it has been questioned whether a proceeding in partition commenced by petition is now valid, and the

'Idem, § 19. 417 N. Y., 218; 25 Barb., 336; 37 * Idem, § 20. Barb., 22.

1 2 R. &, 317, § 1. • Idem, § 448. II.—45

supreme court refused to compel a purchaser under such proceeding to perfect bis purchase, because of the doubt as to the validity of such a proceeding,1 it is advisable to commence such proceedings as an action under the Code, the practice in which will be similar to the former practice in the court of chancery, where the proceeding was by bill.

What courts have jurisdiction. The supreme court succeeded to the equitable powers of the court of chancery, and thus has general jurisdiction of an action for the partition of real estate.3 The county courts have also jurisdiction of such action.3 The superior court and the court of common pleas of the city of New York, when the premises are situated in that city, have jurisdiction, irrespective of the residence of the parties interested.4 The same jurisdiction is also conferred upon the superior court of the city of Buffalo, when the premises are situated in that city; also the mayors' and the recorders' courts of cities have the like jurisdiction, when all the defendants reside within the city in which the court is situated.5

The plaintiff in partition must be of full age.

This statute does not authorize an infant to be a party plaintiff, even jointly with other plaintiffs of full age.6 But when the interest of an infant co-tenant requires such partition or a sale, and it is desirable that proceedings be instituted for that purpose, application must be made to the supreme court for that purpose, and the leave of such court must be obtained.7

What must be the plaintiff's title. The plaintiff must Jwltl and be in possession of lands, tenements or hereditaments, as a joint tenant, tenant in common, in which one or more of such tenants has an estate of inheritance, or for life or lives, or for years.8 To sustain the action, the title of the plaintiff must be clearly established,9 and his possession must not be adverse.10 As between tenants in common, the possession of one is the possession of all; therefore, when the land has descended to them, one of the tenants,