Notice of no personal claim.

selaer, and that there are certain persons, namely, the heirs at law of Philip Adams, deceased, who have an interest, as tenants in common, in the premises sought to be partitioned, and whose names and places of residence are unknown, and who cannot, after due diligence, be found, I do order that the summons in this action be served upon such unknown owners, by publishing the said summons once a week for eight weeks successively (the time must be over six weeks) in two newspapers hereby desig nated by me as most likely to give notice to such unknown owners, namely, the State paper, the Albany Evening Journal, a daily newspaper published in the city of Albany, and the New York Times, a daily newspaper published in the city of New York.

Dated, etc.

CHARLES R. INGALLS,

Justice of Supreme Court.

For a form of affidavit of service of summons upon adults, see Vol. 1, page 544; upon a minor or lunatic, Vol. 1, page 545; for printer's affidavit, and affidavit of mailing summous and complaint, Vol. 1, page 546, and for affidavit of substituted service, Vol. 1, page 547.

Form of affidavit of service upon a corporation. (Title of the cause.)

RENSSELAER COUNTY, Ss.:

day of

Arthur Wight, of Troy, in said county, being duly sworn, says, that on the in the year he served on the Troy Cemetery Association, one of the defendants herein, the annexed summons and complaint, and that such service was made upon the defendant, the Troy Cemetery Association, by delivering to and leaving with Adam Smith, Esq., who is the president thereof, to deponent personally known, a copy of said summons and complaint, at the office of said association in the said city of Troy.

Sworn before me, etc.

ARTHUR WIGHT.

d. Notice of no personal claim. This branch of the subject has already been sufficiently discussed. See Vol. 1, page 492, et seq., and citations there made. See, also, Jay v. Ensign, 9 Paige, 230, on the subject of costs in cases of no personal claim.

Form of notice of object of action and of no personal claim. (Title of the cause.)

To George Roe, one of the defendants in the above-entitled action:

Take notice, that this action is commenced for the pur

Where and in what court commenced.

pose of obtaining a partition and division, among the owners thereof, of certain real estate and premises situated in the city of Troy, in the county of Rensselaer, in which you have, or claim, some interest.

Also take notice that the defendants make no personal claim against you in this action.

The following is a brief description of the premises abovementioned (give short description).

Dated, etc.

Yours, etc.,

GALE & ALDEN,

Attorneys for plaintiff.

Section 2. Where and in what court commenced.

a. In what county. Actions in partition are particularly

must be brought in the Code, § 123, sub. 2. It

named in the Code as actions which county in which the land is located. would seem to be an inference from this rule, that if the land be located in different counties the action might be brought in any of them.

b. In what court. The action may be brought in the supreme court. This court, succeeding to the equity power of the court of chancery now abolished, has general jurisdiction of the action. Every intendment will be made in support of a judgment rendered in this court, unless the want of jurisdiction appears on the face Of the record, or is affirmatively shown aliunde. Castle v. Mathews, Hill & Den. 438; Blakeley v. Calder, 15 N. Y. (1 Smith) 17, 622. The Code has provided also, that county courts have jurisdiction of actions for the partition of real estate situated within the county. Code, § 30, sub. 4. Doubleday v. Heath, 16 N. Y. (2 Smith) 80. The superior court of the city of New York, the court of common pleas for the city and county of New York, the mayor's courts of cities and the recorder's courts of cities are also vested with jurisdiction over those actions where the property sought to be partitioned is located within those cities. Code, § 33, sub. 1, and § 123, sub. 2. Nor does the residence of the parties out of those cities invalidate the jurisdiction of the courts. Porter v. Lord, 4 Duer, 682; S. C., 13 How. 254; 4 Abb. 43; Varian v. Stevens, 2 Duer, 635. The city court of Brooklyn is also clothed with authority over actions in partition when the premises are located within that city. Laws of 1849, chap. 125, § 2, sub. 1; Laws of 1870, chap. 470, § 2; Laws of 1872, chap. 688; Laws of 1873, ch. 239; Griswold v. Atlantic VOL. V.-8

In what court suit commenced.

Dock Company, 21 Barb. 225. Application for leave to institute proceedings in partition on behalf of infants can also be made to this court. Laws of 1863, chap. 66, § 1. Actions for partition may also be brought in the superior court of the city of Buffalo when the premises are located in that city. Laws of 1854, chap. 96, §'9, amended by Laws of 1870, chap. 313, § 1. And generally the superior city courts, namely, the court of common pleas for the city and county of New York, the superior court of the city of New York, the superior court of Buffalo, and the city court of Brooklyn, have original jurisdiction, at law and in equity, concurrent and co-extensive with the supreme court in all civil actions, and all special proceedings of a civil nature. Laws of 1873, chap. 239.

It will be remembered that infants, in order to commence proceedings in partition, must obtain leave from the supreme court. See ante, art. III, § 1. Although, as just seen, they may also apply for permission to the city court of Brooklyn. Whether the action must be carried on in the same court which grants the permission to sue, i. e. in the supreme court, is not plain from the reading of the statute. In all cases, however, where there are infant plaintiffs, the more prudent course is to institute the proceedings in the supreme court. Lyle v. Smith, 13 How. 104; Jennings v. Jennings, 2 Abb. 6, 14.

As to acts which affect the jurisdiction of the supreme court, the following decision of that tribunal is in point: "Questions in a partition suit respecting the suitableness of the guardians ad litem appointed by the court, their attention to the interests of the infants, the money advanced by administrators on behalf of the infants, the amount of the estate, etc., do not affect the jurisdiction of this court or regularity of the sale, and are not grounds upon which purchasers of the land can be relieved from their purchase." Herbert v. Smith, 6 Lans. 493.

Section 3. Actions, when commenced. The rules governing the time when the action of partition may be commenced are not different from those applicable to other actions. For a discussion of the point, see ante, Vol. 1, page 501.

Pleadings and proceedings to the joining of issue.

ARTICLE VI.

PLEADINGS AND PROCEEDINGS TO, THE JOINING OF ISSUE.

Section 1. The complaint. While the system of pleadings prescribed by the Code should govern in actions for partition, yet the particular matters required by the statute to be inserted in a petition for partition should be set forth in the complaint. Ripple v. Gilborn, 8 How. 456, 458. See Code, §§ 142, 448.

The complaint, therefore, should set forth the following facts: It should particularly set forth the premises sought to be divided or sold. It should set forth the rights and titles of all persons interested therein, so far as the same are known to the complainant, including the interest of any 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 contin⚫gency contained in any devise, grant or otherwise, may be or become entitled to any beneficial interest in the premises. 2 R. S. 318 (327), § 5.

In case any one or more of such parties, or the share or quantity of interest of any of the parties, be unknown to the complainant, or be uncertain or contingent, or the ownership of the inheritance shall depend upon an executory devise, or the remainder shall be a contingent remainder, so that such parties cannot be named, such matters must be set forth in the complaint. 2 R. S. 318 (327), § 7.

Where infants are interested in the premises, the complaint should state whether or not the infants own any other land, in common. Sup. Ct. Rules, No. 77. When creditors, having specific liens upon undivided interests of any of the parties, are made parties to the proceedings, the nature of every such lien or incumbrance should be set forth. 2 R. S. 318 (327), § 10 a. It is not necessary that the complaint set forth the seizin of the person from whom title is derived; but it is sufficient to state generally that each tenant was seized of his portion in fee, or as the case may be, whether such seizin was acquired by descent or purchase. Bradshaw v. Callaghan, 8 Johns. 558. When the rights of the defendants, as between themselves, depend upon the validity of a will under which an undivided part of the

The complaint.

premises is claimed, or where the ownership of an undivided share of the premises is contingent or doubtful and depends upon the construction of the will, the complaint should then state the fact of the making of the will and the substance thereof, so far as to enable the court to obtain a proper understanding of the rights of the parties. Van Cortlandt v. Beekman, 6 Paige, 492. Where the complaint alleges that the parties to the action are tenants in common, that allegation will presuppose the possession of the complainant, and will obviate the necessity of his setting forth such possession. Jenkins v. Van Schaack, 3 Paige, 242. It is sufficient to authorize a continuation of proceedings against unknown owners, if the complaint allege that there are certain unknown owners, as required by the Revised Statutes, without specifying their exact interests. Hyatt v. Pugsley, 23 Barb. 285, 303. See 33 id. 373.

A purchaser will not be discharged from his purchase made on a judgment in partition, simply because the plaintiff omitted to allege in his complaint that there were no other parties in interest or incumbrancers than those joined (Noble v. Cromwell, 26 Barb. 475; 6 Abb. 59; affirmed, 27 How. 289; 3 Abb. Ct. App. 382), although it is the duty of the plaintiff to insert in his complaint the interests and shares of all the parties. Noble v. Cromwell, 26 Barb. 475.

A complaint is not bad for misjoinder of actions, because it sets up the claim of one of the defendants to a specific lien for moneys paid to extinguish liens on the premises sought to be partitioned, and asks for an account to be taken of such advances. Bogardus v. Parker, 7 How. 305.

Any plaintiff claiming real estate by descent from an ancestor who died in possession of the same, may prosecute for the partition of such real estate (whether he be in possession of it or not, when the defendant is in possession or claims possession under a void devise from the same ancestor. The complaint must then allege that such devise or apparent devise is void. Laws of 1853, chap. 238, § 2.

Inasmuch as the contingent interests of parties not in being are barred by an actual partition, or by a sale under a judgment in partition, a complaint need not contain allegations in regard to the interests of contingent remaindermen who may hereafter come into being. They are virtually represented by the parties