8 Paige Ch. 513 | New York Court of Chancery | 1840
In cases of this kind, where all the parties who are to be affected by the decree in partition are adults,and have been personally served with process, it is not the practice of the court to examine the proceedings particularly, for the purpose of ascertaining whether all the proper parties are before the court, or whether their respective rights and interests are correctly stated in the master’s report; as it is the duty of the defendants, or their solicitors, to except to the report of the master, if he has not stated their rights correctly upon the evidence before him. And if the necessary parties are not before the court, to make the decree in partition final and effectual between the parties, those who are served with process, should appear and make that objection. But where any persons are proceeded against as absentees, or unknown owners, or where the rights of infants are involved in such proceedings, it is the duty of the court to look into the proceedings, in order to see that their interests are correctly stated so far as can be ascertained from the proofs and the abstract of title reported by the master. And also to see that the proper parties are before the court, as far as their names, and rights, and interests are known; so that the decree will be effectual to bind their rights, as between them and the absent or unknown owners, or the infant defendants.
In this case the only persons proceeded against as unknown owners, are certain persons who are supposed to
So far as respects their rights I see no objection to the conclusion, at which the master has arrived, which can be to their prejudice, if the whole patent contains as many acres as are stated therein. But as certain quantities of land were sold, from time to time, as undivided portions of the whole tract, the master’s report should have stated that the several parties were entitled to have their several quantities set off to them in the order of alienation, subject to the proper deductions on account of the sales for taxes or otherwise ; and that the complainant, who as the grantee of Anthony Lamb is entitled to all the undivided land in the tract which had not been conveyed to others, either upon the tax sales or otherwise, was entitled to such residue, whether more or less than the supposed quantity of 18837 acres stated in the master’s report, subject to a proportionate deduction on account of the 2000 acres sold to H. Seymour in Oneida county.
In another respect, however, I perceive the master has erred in favor of these unknown owners, to the prejudice of the complainant; and also as respects the complainant and some of the other parties who have appeared in the cause. Several parcels of the lands have been sold for taxes from time to time, for the unpaid taxes upon the shares of these unknown owners as well as upon the share which the complainant subsequently purchased from A. Lamb. Each of
Although Watts paid the taxes on 3950 acres, which was more than his proportion of the tract which lay in the county of Oneida, it did not purport to have been paid for one of his co-tenants more than another. He, therefore, had a claim against all of them, rateably,for the money paid for their use; and their legal titles in the lands held by them were diminished in quantity rateably, by the sale for the residue of the tax, notwithstanding such excess in payment.
The same thing occurred in the sale of the lands in Herkimer county for taxes in 1821 ; when all that part of the tract was sold except 3950 acres, undivided, on which the taxes were discharged by Watts. J. C. Devereaux, as the purchaser under Watts, appears, therefore, to be entitled to his full share of the lands set off, in the partition of that portion of the tract, for the unknown owners; and the re
A similar result was produced by the sale to Austin, of 2900 acres in Oneida county, in 1821 ; after Henry Seymour had discharged the taxes on his undivided 2000 acres, and Watts on an undivided 3950 acres, in that part of the tract situated in that county. And also by the subsequent sale of 1000 acres in that part of the tract to J. King, after Henry Seymour had again paid his taxes on his 2000 acres, and J. H. Rogers had discharged the taxes on the 2900 acres. At this last sale the taxes do not appear to have been paid on the share of Watts. That share must therefore, be diminished rateably with those of the other owners whose taxes were unpaid. And as the expense of the partition was chargeable rateably upon the lands of all the owners of the lands divided, the 2000 acres sold in severalty to Horatio Seymour, to pay the portion of the costs upon the lands in Oneida county exclusive of the 1650 acres assigned to Henry Seymour, must be deducted rateably from the shares which the other owners held in that part of the tract, at the time of that sale.
From this statement of the rights of the several parties, it appears to be impossible to make a proper partition without a further reference, to ascertain the quantity of land contained in the whole tract and in each county separately and to ascertain how many acres in each county belong to the unknown owners, and how many to each of the known parties or owners.
There is another difficulty in this case, arising out of the provisions of the revised statutes relative to uses and trusts. It appears by the master’s report that the 2900 acres sold for taxes in the county of Oneida was, in 1829, conveyed to Green and Oliver, in trust for Antoine F. Picquet, who is not a party to the suit; and that in 1833 they conveyed the same to the defendant, Nicholas Devereaux, in trust for Picquet, to be conveyed to such persons, or to be dis