15 Wis. 179 | Wis. | 1862
By the Court,
The only question presented on
The same conclusion seems also to be sustained by those cases, some of which were cited by the counsel for the appellant in Nash vs. Church, 10 Wis., 309, which hold that a partition suit is not designed as a substitute for ejectment, to try conflicting titles, and that the court will not proceed to a partition until the title is settled. Such being the rule, if the court does proceed to a partition, it must therefore adjudge that the title has been settled, and the parties should be concluded by it.
But as the judgment in partition proceedings has such effect, we think that a good reason why.the statute should be strictly complied with, to give the court jurisdiction over unknown owners, who have no personal notice. It is not probable that the plaintiff in the partition suit regarded this defendant as having any such interest in the property as required it to be made a party, as the allegations of the complaint seem to dispose of the entire title among others. Yet we think its allegations also sufficiently comprehensive to include any and all unknown owners, provided the title to any portion proved to be in different parties from those supposed. So that the appellant here was bound, if the proceedings were sufficient to bind unknown owners. The only objection made to them, so far as this point is concerned, is that the affidavit made to authorize publication against unknown owners, does not show that there were no other owners known to the other complainants, besides the one making the affidavit. The statute provided that an order of publication might be made where there were parties having an interest who were “ unknown ” &c., and “ the fact was made to appear by affidavit ’’ &c. R. S. 1849, chap. 108, sec. 11. This statute does not expressly say to whom these owners must be “ unknown,” but it obviously intended that they must be unknown to the plaintiff in the suit, as nobody else’s knowledge or want of knowledge on the subject would be material. The affidavit appearing in this partition record was made by Charles I. Kane, one of the complainants, and states
Our conclusion on this point is sustained by the following cases: Jeffrey's Heirs vs. Hand’s Heirs, 7 Dana, 89; Thruston et al. vs. Masterson et al., 9 id., 236; Taylor's Heirs vs. Watkins et al., 4 B. Mon., 569.
We do not think that the appellant’s point that the Oanal Company could not under any circumstances be proceeded
But for the reason already given, we think the judgment, which was based entirely upon the partition record, must be reversed, with costs, and a new trial ordered.
Ordered accordingly.
Note. — On a petition for rehearing (which was overruled), the counsel for respondents argued that the affidavit made by Charles I. Kane as to “unknown owners,” was sufficient, but that if otherwise, the presumption should be that another affidavit was made; that the circuit court was called upon by the statute directly to adjudicate upon the sufficiency of the proof by affidavit, and that its decision cannot be reversed in a collateral proceeding, citing Grignon’s Lessee, vs. Astor et al., 2 How., 339; Tallman vs. Ely, 6 Wis., 252; Parker vs. Kane, 22 How., 1; Foot vs. Stevens, 17 Wend., 483; and Kart vs. Seixas, 21 id., 40, overruling Denning vs. Corwin, 11 Wend., 647; Kempe’s Lessee vs. Kennedy, 5 Cranch, 173; Skillern’s Exec'rs vs. May’s Exec’rs, 6 id., 267; Cole et al. vs. Hall, 2 Hill, 625; Ex parte Tobias Watkins, 3 Pet., 205; Peacock vs. Bell, 1 Saund., 74. Rep.