That the plaintiff and defendant are seized in fee, as tenants in common, each of the undivided one-half, and in possession of1 the following described lands, tenements and hereditaments, situate in the town of Greenbush, &c., [describing them.] That there are no general or specific liens or incumbrances thereon, to the knowledge or belief of the plaintiff, and that plaintiff and defendant own no other land in common. That the defendant refuses to consent to the partition or sale of said premises; that the plaintiff is desirous that a partition or division should be made of the said several parcels of land between the plaintiff and defendant, or, in premises sought to be divided, or part of them. (Stryker v. Lynch, 11 N. Y. Leg. Obs., 116.) But this does not mean that he must be the actual occupant, or that he should hold an immediate present estate; and an existing admitted life estate, although covering the whole premises, does not prevent the remainderman from being deemed in possession, and he may maintain an action for partition. (Blakely v. Calder, 13 How., 476; see, also, Hosford v. Sherwin, 5 Barb., 52.) A different opinion, however, is expressed in other cases (Fleet v. Dorland, 11 How., 489), holding that a party having a reversionary interest, subject to a life estate, has no possession, actual or constructive, within the meaning of the statute, and cannot maintain an action for partition. 1 It is not absolutely necessary to aver that the complainant is in possession of the premises, as that fact is presumed from the allegation that the parties are seized as tenants in common. (Jenkins v. Van Schaack, 3 Paige, 245.) 2 This is not requisite, as it is not necessary to make creditors, having a general or specific lien, parties. But the plaintiff may, at his election, make every creditor, having a specific lien on the undivided interest of any of the parties, a party defendant. (2 R. S., 318, §§ 8, 9 and 10.) In such case the lien should be set out in the com-, plaint. The old Chancery rule, 174, which required the holders of specific liens and incumbrances to be stated, does not seem to be reënacted. (See Supreme Court Rules, 72, 73, 74.) case the same cannot be partitioned without material injury to the parties, then that the same may be sold, and the proceeds thereof divided between the parties. Wherefore the plaintiff demands judgment, that partition of the above described premises may be made according to the course and practice of the court and the statute, and by commissioners, to be appointed for that purpose. And in case it shall appear that a partition thereof 'cannot be made without material injury to the rights of the parties, then that the said premises may be adjudged to be sold under the direction of this court, and the proceeds of the sale, after paying the costs and charges of this action, be divided among the said parties equally [or according to their rights and interest therein], or for such further, &c., [as in No. 1.] (No. 53.) For partition of real estate, by tenant in common claiming under a sheriff's deed on execution against one of the heirs, against the widow and other heirs of a deceased owner, dying intestate. SUPREME COURT-COUNTY OF ALBANY. George N. Sharp Susannah Bouton, Nathaniel Crosby and Ma ria his wife, &c., [mentioning the names of the widow, all the heirs and tenants in common.] The abovenamed plaintiff complains of the abovenamed defendants as follows, that is to say: That Baldwin Bouton, now deceased, late of the town of Rensselaerville, in the county of Albany, was, in his lifetime and at the time of his death, seized, in fee simple, and possessed of certain premises, known and described as follows: [Describing the premises.] That the said Baldwin Bouton died intestate, some time during the year 1849; that he left him surviving his widow, the said Susannah Bouton, and the following children, viz: [Naming them, and if any are married women, the names of their husbands;] that said Phebe is now dead, leaving two children her sole surviving heirs-at-law, to wit, the defendants, the said Mary Jane White and Helen White, who are both minors; that the said Baldwin Bouton, deceased, left no last will and testament, or any other instrument in the nature of an appointment, directing the disposition of said real estate, or any part thereof, to the knowledge, information or belief of the plaintiff. The plaintiff further alleges, that a judgment was obtained in the Supreme Court of this State, in favor of George N. Sharp, the said plaintiff, against Nathaniel Crosby, and Rufus Bouton, one of the said children of the said Baldwin Bouton, deceased, on the 27th day of October, 1854, for $263.85, and was filed and entered in the office of the clerk of the county of Rensselaer, and a transcript thereof filed in the office of the clerk of the county of Albany; that an execution founded on said judgment was thereafter issued, on the 28th day of October, 1854, in favor of the said George N. Sharp, against the said Nathaniel Crosby and Rufus Bouton, and was directed to John McEwen, then the sheriff of Albany county; that by virtue of the said execution, the said sheriff was commanded to satisfy the said judgment of the goods and chattels of the said Nathaniel Crosby and Rufus Bouton, and if sufficient goods and chattels of the said Nathaniel Crosby and Rufus Bouton could not be found, then to cause the amount of said judgment to be made of the lands, tenements, real estate and chattels real, whereof the said Nathaniel Crosby and Rufus Bouton, or either of them, was seized; that whereas sufficient goods and chattels of the said Nathaniel Crosby and Rufus Bouton could not be found to satisfy the said execution, the said sheriff made a levy upon, and, having first given notice of the time and place of sale, by advertising the same according to law, did, on the 1st day of March, 1855, at public vendue in the city of Albany, sell all the right, title and interest of the said Rufus Bouton in and to the premises heretofore described, and the said premises were then and there struck off and sold to the said George N. Sharp, the plaintiff in this action, and the said sheriff thereupon duly executed a certificate of sale of said premises to the said George N. Sharp, and filed a duplicate thereof with the clerk of the county of Albany; that fifteen months after the said sale and the giving and filing of the certificate thereof having expired without any redemption of the said premises, the said sheriff, in pursuance of the statute in such case made and provided, did, by a deed made the 4th day of June, 1856, grant, bargain, sell, release, assign, convey and confirm unto the said George N. Sharp, the plaintiff in this action, as aforesaid, and to his heirs and assigns, all the estate, right, title and interest of which the said Rufus Bouton was seized and possessed in the said premises on the 28th day of October, 1854. The plaintiff further alleges, that the names and places of residence of such of the heirs of the said Baldwin Bouton, deceased, as are known to the said plaintiff, and as far as can be ascertained by him, are respectively, as the said plaintiff is informed and believes, as follows: [Setting forth the same.] The plaintiff further alleges, that he, the said plaintiff, by virtue of the said deed from the said John McEwen, the said sheriff, as aforesaid, is the owner of all the estate, right, title and interest of the said Rufus Bouton in said premises, that is to say, of the equal, undivided onetwelfth part of said premises of which the said Rufus Bouton was seized, as tenant in common, subject however to the right of dower of the said Susannah Bouton, widow of the said Baldwin Bouton, deceased; that, as plaintiff is also informed and believes, the said Maria Crosby, Mary White, Rhoda Ann Hall, Ursula Smyth, Charles Bouton, Jane Frances Bouton, Joel Bouton, Wellington Bouton, Sabrina A. Bouton and William B. Bouton are each seized, in fee simple, as tenants in common, of the equal, undivided one-twelfth part of said premises, subject however to the right of dower of the said Susannah Bouton, widow of the said Baldwin Bouton, deceased; that the said Mary Jane White and Helen White are each seized, in fee simple, as tenants in common, of the equal, undivided one-twentyfourth part of said premises, subject however to the right of dower of the said Susannah Bouton, widow of the said Baldwin Bouton, deceased; that, as plaintiff is also informed and believes, the dower of the said widow in the premises above described has never been admeasured, or in any way set apart to her from the estate of the said Baldwin Bouton, deceased.1 The complaint must set forth the rights and titles of all persons interested in the premises, 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 in 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 otherwise, may be or become entitled to any beneficial interest in the premises. (2 R. S., 320, § 21, orig. § 20.) |