3 Johns. 459 | N.Y. Sup. Ct. | 1808
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,
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
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.