Recording record of judgment. judgment as being virtually represented by the parties to the action in whom the present estate is vested. Mead v. Mitchell, 17 N. Y. (3 Smith) 210, affirming 5 Abb. 92. As to the effect of the judgment upon creditors, the Revised Statutes have provided that the partition of the premises shall not alter, affect or impair the lien of any creditors by judgment, decree, mortgage, or otherwise, except when the lien is on the undivided interest or estate of any of the parties. In that case such lien, upon partition of the premises, shall be a charge only on the share assigned to such party. 2 R. S. 318 (327), §3 8, 9. But such share shall first be charged with its just proportion of the costs of the proceedings in preference to any such lien. 2 R. S. 318 (327), § 9. In respect to the actual partition of the premises, the judg ment binds the parties from the time of the confirmation of the commissioners' report, without any reference to the subsequent completion of the record. Van Orman v. Phelps, 9 Barb. 500. Nor need the judgment be docketed to have effect. - Lynch v. Rome Gas Light Company, 42 Barb. 591. See Butler v. Lee, 3 Keyes, 70, 76; S. C., 33 How. 251; 1 Abb. Ct. App. 279. A record of judgment, although an authentic history of the proceedings and judgment in the suit, and the highest kind of evidence, and in general conclusive evidence of the judgment, yet it is evidence only. It is the fact proved by it which is to have effect. Van Orman v. Phelps, 9 Barb. 500. Section 15. Recording record of judgment. It is provided by statute that an exemplification of any judgment, record or decree in partition may be recorded in the clerk's office of the county in which the lands described therein are situated, and that such record, or an exemplification thereof, shall be received in evidence, and shall be as effectual in all cases as the original exemplification would be if produced, and shall be open to the same objections. Laws of 1846, ch. 182, § 2. The provis ions of this section were, by a later enactment, made applicable to the register's office of the city and county of New York. Laws of 1851, ch. 277, § 1. Section 16. Proceedings on report that partition cannot be made. a. In general. If the commissioners are satisfied that a partition is impossible or would be prejudicial, they must so state in their report, entering sufficiently into the reasons which induced the belief. Wend. 226. Order for sale. 2 R. S. 322 (331), § 28; Tucker v. Tucker, 19 b. Order for sale. The court, being satisfied that the report of the commissioners adverse to a partition is just and correct, may thereupon, by a rule to be entered upon the filing of the report, order the commissioners to sell the premises so situated at public auction, to the highest bidder. 2 R. S. 323 (332), § 37. But the court must be satisfied that the premises are so situated that a partition thereof cannot be made without great prejudice to the owners. Fleet v. Dorland, 11 How. 489, 490, citing Tucker v. Tucker, 19 Wend. 226. The prejudice referred to in the statute (2 R. S. 323 [332], § 37) means a prejudice to all the owners, and not to a part only. Van Arsdale v. Drake, 2 Barb. 599. And it refers to a comparative prejudice between an actual partition and a sale. The language of the statute will not justify a sale where the aggregate amount of benefits from a sale instead of a partition will be small, in reference to the value of the property. Van Arsdale v. Drake, 2 Barb. 599; Smith v. Smith, 10 Paige, 470. Where a master had reported the feasibility of an actual partition, and commissioners, afterward appointed, had reported the necessity of a sale, the court would not, upon the latter report, order a sale. The court said: "If the situation of the property or the rights of the parties therein have materially changed since the report of the master, there should be a special application to the court for a new reference, to ascertain whether a partition can still be made." Reynolds v. Reynolds, 5 Paige, 161. It seems that arrears of taxes and assessments furnish no ground for ordering either a sale or a partition of premises. Fleet v. Dorland, 11 How. 489. The court is not bound to order a sale of all the premises, nor a partition of the whole. Part of the lands may be divided, a part sold as the interests of the co-tenants require. 2 R. S. 323 (332), § 37; 2 R. S. 330 (340), § 81. Haywood v. Judson, 4 Barb. 228, recognized Van Orman v. Phelps, 9 id. 500. The court may decree a sale as often as it shall have ascertained and declared so many facts concerning the rights, titles and interests of all or any of the parties, that a fair and just distribution of the proceeds can be made in severalty. Laws of 1847, vol. 2, chap. 430, § 1; see, also, page 80, ante. Shares of the proceeds, as to which there are conflicting claims not affect Proceedings by commissioners under the order of sale. ing other shares, may be temporarily set off to adverse claimants, with a proper reservation of the questions of right between the claimants. Laws of 1847, vol. 2, chap, 430, § 2. The proceedings as to making new parties, and as to references for liens, under 2 R. S. 324 (333), §§ 42, 43, will be considered hereafter, in subsequent pages. Form of an order directing a sale of the premises by com (Title of the cause.) missioners. (Caption.) On reading and filing the report of F. P. Allen, E. W. Boughton and E. A. Peck, commissioners appointed to make partition of the premises described in the complaint in the above-entitled action, wherein the said commissioners report that the said premises are so circumstanced that an actual partition thereof cannot be made without great prejudice to the owners of said premises, and the court being satisfied that such report is just and correct: It is, on motion of Gale & Alden, attorneys for the plaintiff, ordered that the said commissioners sell the said premises, with the appurtenances, at public auction, to the highest bidder, after giving due notice of the time and place of such sale, according to law. And it is further ordered that a credit of twelve months [or other time] be given for one-fifth [or other proportion as the court may direct] of the purchase-money of the said premises, to be secured at interest, by a mortgage on the premises sold, and also by a bond of the purchaser, conditioned for the payment of the said one-fifth [or other proportion], in twelve months [or other time] from the date of said sale. And it is further ordered that the said commissioners forthwith, after the said sale, make report to this court of their proceedings thereon; and that after the said report shall have been duly confirmed, then that they execute a deed or deeds of the said premises to the purchaser or purchasers at the said sale, on their complying with the conditions upon which the said deeds were to be delivered, and that such sale be valid and effectual forever. c. Proceedings by commissioners under the order of sale. The duties of the commissioners under the order of sale are similar to those of referees under a like order which will be hereafter detailed. Many directions frequently inserted in an order to commissioners to sell, will also be found hereafter in a form of an order to referees to sell. It will be sufficient to say here, that after the sale has been completed, the commissioners are directed to report the same to the court on their oath with a Form of a report of sale by commissioners. description of the different parcels of land sold to each purchaser, the name of such purchaser, and the price bid by him. This report is to be filed in the court. 2 R. S. 326 (336), § 59. Where lands leased for a term of years are owned by several individuals as tenants in common, both of the rents and of the reversion, a sale of those lands, under a judgment or decree in partition, must be made subject to the rights of the lessees, who, by the sale, will become the tenants to the purchaser of the rents and reversion. Woodworth v. Campbell, 5 Paige, 518. Form of a report of sale by commissioners. (Title of the cause.) To the Supreme Court of the State of New York: The undersigned F. P. Allen, E. W. Boughton and E. A. Peck, appointed commissioners in partition and directed by an order of this court dated the day of 18 to sell the premises described in said order, at public aution, to the highest bidder, do report: That having caused a notice of the time and place of sale of said premises, containing an accurate description thereof, to be published once in each week for six weeks immediately previous to such sale, in one of the public newspapers printed in the County of Rensselaer, where such premises are situated, and having also caused a copy of such notice to be put up at three public places in the city where the said premises were sold (if sold in a town different from that where premises are located, say; and also in the town where the said premises are situated), we did on the day of 18 at 11 o'clock in the forenoon, that being the time specified in the said notice, attend at the front steps of the court-house, in the city of Troy, the place therein mentioned, and exposed the said premises for sale at public auction, to the highest bidder, as directed by the said order. We do further report that the said premises were sold together and were struck off to Peter Sands of said city for the sum of dollars, that sum being the highest sum bidden for the same, and the said Peter Sands being the highest bidder therefor, (or that the said premises were put up separately and were each and every of them struck off to Peter Sands of said city for the following sums: Lot "A" for the sum of dollars; Lot "B," etc., those sums being the highest sums bidden for the said lots respectively, and the said Sands being the highest bidder therefor, which several sums amount in the whole to dollars.) We further report that the terms and conditions of such sale were reduced to writing, and made known to the persons attend Final order after sale. ing said sale, previous to putting up the said lots, and were as follows: (stating same.) We further report that the said Sands has signed the written conditions of sale above mentioned, together with an acknowledgment that he has purchased the premises upon those terms; and he has in all respects complied with the terms of sale above mentioned. All of which is respectively submitted. Date, etc. (Signatures of commissioners.) d. Final order after sale. If the sale thus made and reported be approved and confirmed by the court, an order shall be entered directing the commissioners or any two of them to execute conveyances pursuant to such sales. This the statute authorizes them to do. 2 R. S. 327 (336), § 60. Such conveyance must be recorded in the county where the premises are situated. 2 R. S. 327 (336), § 61. See post, p. , for discussion of the effect of the conveyance. Form of order confirming sale by commissioners. (Title of the cause.) On reading and filing the report of F. P. Allen, E. W. Boughton and E. A. Peck, commissioners appointed to make partition between the parties of the land and premises described in the complaint in this action, whereby it appears that, etc. (Insert the substance of the report of sale.) Now on motion of Gale & Alden, attorneys for the plaintiff, it is ordered that the said sale be and the same is hereby ratified, confirmed and approved by the court; and that the said commissioners, or any two of them, execute a conveyance to the said Peter Sands pursuant to such sale. It is further ordered that the costs and expenses of the proceedings in this action, which are adjusted according to law, at the sum of dollars, be deducted from the proceeds of the said sale, so made by the said commissioners, and be by them paid to the said plaintiffs or to their attorneys. And the said commissioners also pay to the said plaintiffs or bring into court for their use, the one-sixth part of the residue of the proceeds arising from the said sale. And it is further ordered, that the said commissioners bring into court and pay to the treasurer of the county of Rensselaer, the one-sixth part of the said residue of the said proceeds, being the share arising from the sale of the interest of James K. Green in said premises, after deducting the portion of the costs and expenses to which said share is liable. (If the portion of |