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The New York practice : a treatise upon practice and pleadings in actions and special proceedings in the courts of record of the State of New York (Volume 2) online

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for an order for such purpose.^ This application is by peti-
tion, on behalf of the infant by his general guardian, if he
has one, and if none, then by some relative with whom he
resides, if under the age of fourteen years, and by himself
when he is over that age and has no general guardian.

The petition must show to the court that the infant is pos-
sessed of real estate as tenant in common or joint tenant,
and that the interest of such infiint require such partition
or sale of said estate. The court will authorize proceed-
ings for that purpose to be instituted, when these things
are made satisftictorily to appear; and will proceed to
appoint a competent next friend to conduct the proceed-
ings on the part of such infant, on the proper application.^
This petition is simply addressed to the court, without
being entitled, setting forth the facts showing that the
infant is entitled to the partition, and the reasons why it
is proposed to apply for the same; and it should, also,
state whether the infant owns any other land in common.^

The court must be satisfied of the propriety of such
an order, and its usual course is, to order a reference to
report the facts, that it may be informed on the subject.*
The court being satisfied that the interest of the infant
requires the partition, will grant the order, which is to be
filed and entered in the county where the real estate is
situated.^ The api)lication for the appointment of a giiar-
dicm ad litem, or next friend, may be united with the one
asking leave to commence suit, and the court, not unfre-
quently appoints the general guardian such next friend.

The statute of 1852 provides, that the next friend shall
be appointed upon the like application, and in like man-
ner, and shall give the like security and possess such
powers as are specified and required in sections tivo, three
and four of title third chapter ^ve of the third part of the
Kevised Statutes.*^

The provisions above referred to are those which provide
for the appointment of guardian ad litem for minors in
proceedings for partition, where it is represented to the
court that there are minors, who should be parties to
the proceedings, and that notice of an intention to apply
to such court for such order had been served upon the



' L. 1852, 411, § 1 ; see 15 How., 383 ; * 2 Van Sant. Eq. Pr., 9.

21 Id., 479; 4 N. Y. S. at L., 615. ' 2 Van Sant. Eq. Pr., 10.

' Idem, § 2, 2 R. §., 317, § 2. " 4 N. Y. S. at L., 615.
' See Rule, 47.



PAKTITION. 357

general guardian, at least ten days prior to such applica-
tion.^ The guardian thus appointed, is required to give
bonds in such penalty, and with such surety, as the court
shall direct, to the people of the state, conditioned for the
faithful discharge of the trust committed to him, and to
render a just and true account of his guardianship in all
courts and places when thereunto required ; and until this
bond is given he is not authorized to enter upon the dis-
charge of his duties.

Before commencing the action it is also important to
determine who should be made defendants thereto. The
statute provides that every person interested in the pre-
mises, whether in possession or otherwise, including those
having an estate therein as tenant for years, for life, by
the curtesy or in dower, and the persons entitled to the
reversion, remainder or inheritance after the termination
of any particular estate therein, and every person who, by
any contingency contained in any devise, grant or other-
wise, may become entitled to any beneficial interest in the
premises, and every person entitled to dower in the pre-
mises, if the same has not been admeasiu:ed, may be made
parties to the proceedings.^

When lands are held by the people of the state and an
individual thereof, as tenants in common, and partition is
sought, the people are also to be made parties the same as
individuals, and the like orders and decrees may also be had
against them. The petition and other notices are to be
served upon the attorney-general who ajipears in behalf
of the people of the state.^

When parties interested are unknown, that fact should
be stated, and they may be made parties to the suit, gene-
rally without stating their names, but by merely adding
to the title of the summons and complaint " and all per-
sons or owners unknown having or claiming any interest
in the premises sought to be partitioned in this action."

Idiots, lunatics, habitual drunkards, &c., are also to be
made parties when interested, with their committees ; and
the service of summons should be upon both.* When a
sale of the premises is contemplated, a married woman
having merely an inchoate right of dower, should be united
with her husband,' and when the married woman has a



' 2 R S., 317, S§ 2, 3, 4. * 3 Barb. Ch., 24.

' 2 R. S., 318, §g 5 aud 6. * 7 Paige, 386.

» 2 R. S., 331.



358 ADMINISTRATION OF CIVIL JUSTICE.

separate estate as a tenant in common with others, she
may be made a party defendant without her husband.^

Judgment creditors, mortgagees, reversioners or any
person having or being entitled to contingent interests in
the property, are proper parties ; and to affect their inter-
ests therein, they are necessary parties.^

The action is commenced by the service of a summons
and complaint, or a summons alone. The summons is
entitled with the full names of the parties to the action,
accompanied with a notice of the object of the action, and
that no personal claim is made.^ The mode of serving the
summons, either personally, by pubhcation or by substi-
tuted service, and the proof thereof, is the same as in civil
actions,^ and at the same time notice of the pendency of
the action should be made out and filed.'*

The pleadings. The rules of pleading are the same as in
other civil actions.^ The complaint takes the place of the
former petition, and must therefore contain all that
the statute required to be stated in the petition.^ It is
provided that the bill or petition must describe particu-
larly the premises sought to be divided and sold. That
it must set forth the rights and titles of all persons
interested therein, so far as the same are known, including
the interest of any tenant for years, or for life, or by the
curtesy, or in dower, and the persons entitled to the rever-
sion, remainder or inheritance after the termination of
any particular estate therein, and every person who, by any
contingency contained in any devise, grant or otherwise,
may become entitled to any beneficial interest in the pre-
mises." The complaint must likewise state the facts, where
the parties, or any share or interest of the parties, is un-
known, uncertain, or contingent ; or where the ownership
of the inheritance depends upon an executory devise ; or
where the remainder is a contingent remainder, so that
such parties cannot be named.^ If creditors have specific
hens upon the premises and they are made parties, the
complaint must also state the nature of such liens or
incumbrances.^ Like the complaint in other civil actions,



^L. I860, 158, §7. ^2 Abb., 14.

" 2 R. S., 318, § 10 ; 2 Barb. Ch. Pr., * 8 How., 458.

218. ' 2 R. S., 318, § 21.

= 2 Van Sant. Eq. Pr., 15; 11 How., * Idem, 318, § 5.

-'!"'■ *Idem, 318, as amended by the act of
* See ante, Lis Pendens, Vol. I, 193. 1830, ch. 320, § 41.



PAETITION. 359

it should set forth all the facts necessary to enable the
court to understand the rights of the parties. It is not
necessary to set out the particular interest of those who
are alleged as unknown owners. The general allegation
that there are such, according to the requirements of the
statute, is sufficient.^ The complaint need make no alle-
gations in respect to the interests of contingent remainder-
men who are to come into being thereafter ; because they
are virtually represcDted by those in whom the present
title is vested.'* The allegations in the complaint may be
upon information and belief, and may be verified or not at
the option of the i)laintiff.^

The complaint may be amended for the purpose of
bringing in additional defendants, who, during the progress
of the proceedings, appear to have an interest in the pre-
mises, by will, deed or grant from any original defendants,
and who might originally have been made defendants,
had their interest then existed or been known. Under
the statute, to do this, required a forty days' notice of the
motiou,* but under the Code the notice will be the same
Eis is required in other cases.^

If there are any minor defendants, it will be necessary
to have guardians ad litem appointed for them, before the
plaintitf can make apjjlication for judgment. The guar-
dian may be appointed either on the application of the
plaintitf or on the application of the infant himself if he
be above the age of fourteen years ; or if he be under that
age, on the application of some relative or Iriend.

The appoiiUment of guardian ad litem for infant defendants upon
the application of the plaintiff .

The statute provides that if it shall be represented to the
court by any party intending to institute proceedings for
partition, that there are any minors who should be made
parties to the proceedings thereon, and it shall be satis-
factorily proved to the court, that at least ten days' notice
has been served on such minors, as reside within the state,
or upon their general guardians, of an intention to apply
to such court^for the order herein mentioned, such court
shall thereupon appoint a suitable and disinterested person



' See 23 Barb., 303. * 2 R. S., 320, § 21.

« 17 N. Y., 210. * 2 Abb. 15.

' 2 Van Sant. Eq. Pr., 19.



360 ADMINISTRATION OF CIYIIi JUSTICE.

to be guardian for one or more of such minors, whether
the said minors shall reside in or out of this state, for the
special purpose of taking charge of the interests of such
minors in relation to the proceedings for a partition.^

The Code provides that in actions for the partition of
real property where an infant defendant resides out of the
state, the plaintiff may apply to the court in which
the action is pending, at any special term thereof, and
will be entitled to an order designating some suitable per-
son to be the guardian of the infant defendant, for the
purposes of the action, unless the infant defendant or some
one in his behalf, within a number of days after the service
of a copy of the order, which number of days shall be in
said order specified, shall procure to be appointed a guar-
dian for the said infant ; and the court shall give special
directions in the order for the manner of the service there-
of, which may be upon the infant himself or by service
upon any relative or ijerson with whom the infant resides,
and either by mail or personally' upon the lierson so served.^
And in case an infant defendant, having an interest in the
event of the action, reside in any state with which there is
not regular communication by mail, on such fact being
made to appear to the court, the court may appoint a
guardian ad litem for such absent infant party, for the pur-
pose of protecting the rights of such infant in said action ;
and on such guardian ad litem, process, pleadings and
notices in the action may be served, in the like manner as
upon a party residing in this state.^

An infant defendant has twenty days after the service
of the summons within which to apply for the appointment
of a guardian ad litem. Consequently, the plaintiff must
wait twenty days after such service of summons upon the
infant before applying to the court for the appointment of
such guardian, where the infant defendant is of the age
of fourteen years. If the infant be under the age of four-
teen years, the plaintiff, having given notice to the general
or testamentary guardian of such infant, if he has one
within the state, or if none, then to the person with whom
such infant resides, if he reside within the state, may apply
at once for such an appointment. The length of the time
required for such notice to be served upon the general
guardian, &c., is, according to the statute, ten days.^ It

' 2 R. S. 317. § 2 ; 2 N. Y. S. at L., ' Code. § 116.
326. « 2 R. S., 317, § 2.



PAETITION. 361

would not be safe to give the ordinary eight days' notice
of the Code, and for greater caution, the ten days' notice
should be given. ^

The appointment is made upon the petition of the plain-
tiff, which, with the notice specifying the time and place
of its presentation, is to be served as last above stated.
The petition must be presented to the court at special
term, and not at chambers, unless the court at chambers
is, by law, deemed a special term of the court.^

The petition should specify the person proposed as guar-
dian, and the consent of the guardian to serve as such,
and to give the security required, should also be written
or indorsed upon the petition. If the person proposed be
not the general guardian of the infant, it should appear in
the petition or in accompanying affidavits, that the person
proposed is one competent to understand and protect the
rights of the infant, and has no interest adverse to that of
the infant, and is not connected in business with the attor-
ney or counsel of the adverse party, and is of sufficient
ability to answer to the infant for any damages he might
sustain by his negligence or misconduct in the defense of
the action f and when no responsible person will consent
to become guardian and give the required security, the
petition should ask the appointment of the clerk of
the court, who may be appointed without giving security.*

Granting the order, apiminting the guardian. In the case
of resident infant defendants, upon i^roof of the due ser-
vice of the petition and notice, and proof of the signature
of the guardian i3roposed, to the consent required to be
indorsed upon the i)etition — if he be not an attorney or
an officer of court, when no such proof is required — and
upon the courts' being satisfied that the person proposed
is suitable, within the requirements of the rule,^ the courts
will grant the order appointing such person a guardian
ad litem for the purposes of such suit. The order must
specify the amount of security which the guardian is
required to give, and must be entered and filed in the
usual way,^ and the guardian thus appointed, before enter-
ing upon the duties of said office, must execute a bond in
such x^tinalty, and with such security as the court shall

' See 2 Duer, 635 ; 13 How., 105. = 2 Van Sant. Eq. Pr., 21 ; see Rule 60.

"As in the first judicial district; or ■» L. 1813, 311; 4 N. T. S. at L., 613.

where a special term has been ad- ' Rule 60.

journed to be held at chambers ; ' 2 Van Sant. Eq. Pr., 22 ; 1 Id., 453.

Code, § 24, as amended in 1862.
II.— 46



362 ADMDTISTEATION OP CIVrL JUSTICE.

direct, to the people of the state, conditioned for the faith-
ful discharge of his trust, and to render a just and true
account of his guardianship, which bond must be filed in
the office of the clerk, before any further order is made.^
This bond is to be signed by the guardian and his sureties,*
although a defectively executed bond, may, by the consent
of the obligors, be amended by the court.^ The act of
1852 provides, that in suits or proceedings for the partition
of land properly instituted, where the guardian for minors
has entered upon the execution of his duties, and rides and
orders have been made without the filing of the requisite
bond, or when it shall appear that such bond cannot be
found on file, the court, or any judge thereof, may, on
application of any party to the suit or proceeding, at any
time before judgment or decree in all cases, or after judg-
ment or decree in cases of actual partition, authorize and
direct the filing of a bond by such guardian, and the
X)eualty and surety thereof to be filed as of the same date
with the order appointing the guardian, having the like
form and etfect in every respect as if such bond had been
directed by the court and duly executed and filed by the
guardian at the date of his appointment/

It has been held that this act applied only to cases of
actual imrtition^ and not to cases where a sale had been
had ;^ but the court of appeals held the act to be enabling,
and not a restrictive act. That the omission to file the
bond was a mere irregularity, which was amendable ; and
that a court having original equity jurisdiction, had power
to order such bond to be filed, either before or after sale,
as well as on ^^ actual partition.''^

As already observed, the infant defendant, if over the
age of fourteen years, may apply on his own petition for
the appointment of a guardian ad litem. This application
should be made within twenty days after the service of
summons upon him.^ If the infant be under the age
of fourteen, such application for the appointment of the
guardian, may be made at any time within twenty days
after the service of summons, by some relation or friend
of the infant;^ and the subsequent proceeding in the
appointment of such guardian will be the same as if he

'2R. S., 317, §4. ''2 Abb., 6.

' 2 Abb., 6. « 17 N. Y., 218.

^ 14 How., 94; see L. 1852, 411, 8 3. ' Code, § 16. sub. 2.
* L. 1852, 411, § 3; 4 N. T. S. at L.,
615, § 3.



PAETITION. 363

was appointed on the application of the plaiutiflP. If the
infant defendant be a married woman, she may appear
voluutarilj^ even without her husband ; though it is
important that he be joined with her, in order to cut off
his possible interest in her estate should she die intestate.^

The ansxoer and other pleadings.

After the complaint has been prepared and served upon
the defendants, it must be answered within the rule, or
the defendants will be in default, and the plaintiff, having
procured the appointment of guardians ad litem for all
infant defendants, may proceed to take judgment on
such default. If the facts set up in the complaint are
true, and there is no new matter to be alleged in avoid-
ance, then, no answer will be required. Such is the case
even where a guardian ad litem has been appointed. He
need not put in a general answer, simply submitting the
rights of the infant to the court, where all the facts are
correctly stated in the comi)laint, and no opposition is
intended to be made. But if the facts stated in the com-
plaint, or any of them which are material, are untrue, the
defendant must answer by denying the same as in other
civil actions. In short, the rules applicable to an answer,
as discussed in the first volume of this work, are applica-
ble in actions for partition.^

Any party appearing may plead either separately or
jointly with one or more of his codefendants, that the
X)laintiffs, or any of them, were not in possession of the
premises in question, or any part thereof; or that the de-
fendants, or any of them, did not hold the premises with
the x>laintiflEs at the time of the commencement of the pro-
ceedings as alleged in the complaint ; or may plead any
other matter, showing that the plaintiff is not entitled to
maintain his said action.^

Other and further pleadings may also be had between
the parties respectively, according to the practice of the
court, as in i)ersonal actions, until an issue or issues of
law and of fact are joined between the parties or some
of them,* and whenever joint tenancy or tenancy in com-
mon of any defendant shall be denied by a codefendant,
and it shall become necessary to determine the same in



' 5 Abb., 54. ' 4 How., 125.

» Vol. I, 368. * 2iR. S., 320, §§ IG, 17.



364 ADMimSTKATION OF CIYTL JUSTICE.

order to effect a complete and final partition so far as the
rights of the parties are concerned, the court may direct
an issue to be formed on the record, and may direct the
jury to inquire into, try and determine, as well the tenancy
of the defendant so denied, as the other issues joined on
such pleadings.^

If the defendants fail to appear and plead they will be
liable to a judgment on default, and the plaintiff will be
entitled to the legal relief asked for, as in other civil actions.
Where there are issues as to one or more of the defendants,
and failure to answer as to the rest, the trial of the issues
may be brought on before the court in the usual manner,
and at the same time, on notice to the defendants who
appear, but do not answer, and the proof requisite in case
of default must be presented to the court so that the de-
cision of the court upon the issues, being rendered, one
general order may be made determining such issues, and
directing the proper reference under the rules and statute
as to all the defendants.^ And the issues of fact must first
be disposed of before further steps can be taken against
those making default. After the verdict has been rendered
for the plaintiff' on these issues, a motion is made for the
relief demanded in the complaint against all the defend-
ants, as well those embraced in the issue tried, as the others
making default.^

Wliere none of the defendants appear to demur or answer,
the plaintiff, at the expiration of the time for answering,
applies to the court for the relief demanded in the com-
Ijlaiut, which is a judgment of partition. This judgment
will be given, as a matter of course, on the plaintiff's prov-
ing his title in the premises as required by the statute.*
This proof may be made in open court,^ or a reference may
be ordered to take proof of title and report upon the same,
with an abstract of the conveyances by which it is held.''
The title required to be established, is such as would entitle
the party to recover in ejectment,'^ and should be traced
back to a common source.^

To entitle the plaintiff' to judgment, in addition to the
above, he should prove service upon all the defendants.



' Idem, § 18. '2 Paige, 27, 28.

' 2 Van Sant. Eq. Pr., 27. « 2 Van Sant. Eq. Pr., 28.

' Idem. '2 Paige, 27, 28.

* 2 R. S., 321, § 23; 8 How., 456; 2 « 8 Paige, 513.
Abb., 15.



PARTITION. 365

that no answer or demurer has been received, and he should
produce affidavits showing that none of the defendants are
infants.*

A reference ordered.

Where the rights and interests of the several parties, as
stated in the complaint, are not denied or controverted, if
any of the defendants are infants or absentees, or unknown,
the plaintiff, on affidavit of the fact, and notice to such of
the parties as have appeared, may apply at a special term
for an order of reference to take proof of the plaintilf' s title
and interest in the premises, and of the several matters set
forth in the bill or petition ; and to ascertain the rights and
interests of the several parties in the premises, and an
abstract of the conveyances by which the same are held.^
The order of reference in such case, must direct the referee
to take proof of the title of the plaintiff, and of the several
matters set forth in the complaint; and to ascertain and
report particularly what share or part of the premises be-
longs to each of the parties to the suit, so far as the same
can be ascertained; and the nature and extent of their
respective estates or interests therein; and that he also
report such proof, and an abstract of the conveyances by
which the title to the i)remises is held.^

It is further provided by rule that where the whole
premises of which partition is sought, are so circumstanced
that a partition thereof cannot be made without great pre-
judice to the owners, due regard being had to the power
of the court to decree compensation to be made for equality
of partition, and to the ability of the respective parties to
pay a reasonable compensation to produce such equalitj^
or where any lot or separate parcel of the premises, which
will exceed in value the share to which either of the
tenants in common may be entitled, is so circumstanced,
the xjlaintiff, upon stating the fact in the affidavit which is
to be filed for the purpose of obtaining an order of reference
under the next preceding rule, may have a further provision
inserted in such order of reference, directing the officer or
person to whom it is referred, to inquire and report whether
the whole premises, or any lot or separate parcel thereof,
are so circumstanced that an actual partition cannot be

• 2 Van Sant. Eq. Pr., 28. ' 2 Paige, 29 ; 2 Barb. Ch. Pr., 296.

" Rule 78, of 1858 ; 2 R. S., 321, § 23 ;
8 Paige, 513.



366 ADMmiSTRATION OF CIVIL JUSTICE.

made ; and that if lie arrives at the conclusion that the
sale of the whole premises, or of any lot or separate parcel



Online LibraryJoel TiffanyThe New York practice : a treatise upon practice and pleadings in actions and special proceedings in the courts of record of the State of New York (Volume 2) → online text (page 37 of 50)