Swanton v. Crooker , 52 Me. 415 ( 1864 )

The opinion of the Court was drawn by

Davis, J.

—The petition neither states nor refers to any boundaries by which it would be possible to ascertain the premises of which partition is claimed. It would have been dismissed upon motion, demurrer, or plea, as too indefinite for any judgment to be rendered upon it. Miller v. Miller, 16 Pick., 215. A survey may sometimes be made; but this can be done only when the petition refers to the facts by which that which is uncertain may be made certain. The petition in this case can furnish the commissioners no facts, by reference or otherwise, from which they, by a survey or other examination, can find the premises to be divided.

The petition might, in the discretion of the Court, have been amended at any time before the interlocutory judgment.

But it is now too late, unless'the verdict is first set aside by consent; for it is uncertain what the judgment would have been upon the petition as amended. The exceptions are sustained; and the motion for the acceptance of the report of the commissioners, and the entry of judgment for partition upon it, must be denied.

When this case was before us upon a former occasion, no copy of the petition was presented; and no question was raised as to its. sufficiency.

Appleton, C. J., Kent, Walton, Dickerson and Daneorth, JJ., concurred.