Opinion
(June Term, 1839.)
In a petition for the partition of land, or for the sale of it for that purpose, under the act of 1812 (1 Rev. Stat., ch. 85, sec. 7), if the statements as to the persons entitled to the land and their respective shares therein be not sufficiently precise and distinct, the court will direct a reference to the clerk and master for the necessary inquiries as to the interests of the parties.
PETITION by some of the tenants in common of a certain tract of land, against their cotenants for a sale of the land for partition, under the act of 1812 (1 Rev. Stat., ch. 85, sec. 7); but the persons entitled to the land, and their respective shares therein, were not distinctly and precisely shown either in the statements of the petition or by the evidence produced to establish them. Nor did it plainly appear from the record who had been served with process or had appeared as defendants to the petition; but, nevertheless, the cause was set for hearing, and transferred to the Supreme Court to be heard.
B. F. Moore for petitioners.
Badger and the Attorney-General for defendants. (307)
The statements in the petition as to the persons entitled to the premises, and of their respective shares therein, are wanting in distinctness and precision, and the evidence to establish these statements is as vague. We think it proper, therefore, to adopt a practice which prevails in analogous cases in England, which is there found convenient, and which in our country, where the subdivision of estates under the law of descents so greatly increases the difficulty of ascertaining the remote collateral heirs of a deceased person, is almost indispensable. The plaintiffs there, in a bill for partition, state upon the record their titles and those of the defendants; and whenever there is a difficulty respecting them, the court directs a reference to ascertain what are the respective interests of the parties; and if it appear that they, or some of them, are entitled to the whole, then a partition is decreed according to the rights of those entitled, dismissing the bill as against those having no right. Agar v. Fairfax, and Agar v. Holdsworth, 17 Ves., 552. In this case, indeed, the application is for a sale under our act of 1812 (1 Rev. Stat., ch. 85, sec. 7), but that sale is but a substitute for partition; and, before it is decreed, there ought to be an ascertainment of the interests of the parties. The clerk of this Court is therefore directed to make these inquiries. At the same time he is directed to inquire and report whether a sale of the premises be necessary; and, as the transcript from the court below does not plainly show who have been served with process, or appeared as defendants to this petition, and as to whom it has been taken pro confesso, he will report thereon, also.
PER CURIAM. Order accordingly.
(308)