Jackson ex dem. Antell v. Brown , 3 Johns. 459 ( 1808 )

Yates, J.

delivered the opinion of the court. Two questions arise in this cause.

1. Whether the want of notice to the defendant, being a co-tenant, does not avoid the partition ?

2. If the partition cannot be maintained, whether the lessors of the plaintiff, or either of them are, notwithstanding, entitled to recover an undivided part, as tenants in common ?

By the first section of the act for the partition of lands, passed the 7th April, 1801,^* it is directed, that á copy of the petition shall be served, 40 days previous to the term in which the same shall be presented to the court, on all parties concerned, who shall not join in such petition, and shall reside in the state, together with a notice subscribed by the petitioners, and directed to the party, that an application will be made to the court for the appointment of commissioners to perform the duties stated in the act. By a supplementary act, passed the 9th April, 1804^†, relief is given to tenants in common where any of their co-tenants, and the extent of their interest in the premises, are not known, by making it the duty of the court, on a suggestion of the facts, supported by an affidavit, to direct a publication, and the form thereof. These being express provisions by statute, this court cannot dispense with them, by any intendment.

The personal service of the notice on Cadwallader R., Colden, who had previously parted with his interest to the defendant who resided in the state, cannot be deemed a a sufficient service. The defendant was entitled to personal notice under the statute, unless the parties had com - plied with the provisions contained in the supplementary act. This has not been done ; no such suggestion appears; in the proceedings of the partition, either by affidavit or otherwise.

There can be no doubt that the parties petitioning considered C. R. Colden as possessing the share originally held by him, and had no knowledge of the defendant’s interest. This, however, cannot affect the right of the defendant., Under the act; and the omission to comply with its directions in bringing the defendant properly into court, so as to make him a party, renders the proceeding wholly inoperative, and, consequently, destroys any right the lessors might otherwise have under the partition.

It does not appear that any title was produced, except what appeared from the proceedings of the partition. As-these were void, for the reasons already mentioned, the lessors of the plaintiff have not made out their claim to any part of the premises.

The Court are, therefore,- of opinion, that the defendmit is entitled to judgment.

Judgment for the defendant;

* Laws N. Y. v. 1. p. 542.

† L. N. Y. p. 285.