8 490. Allegation of Demand. The form of a declaration at law1 and of a bill in Chancery,' as given by eminent writers, both contain an allegation to the effect that the applicant has demanded that partition be made, and that the defendants have refused to consent thereto. The same allegation is to be found in some of the works on pleading prepared under the Code of Procedure of New York.' But as we know of no decision at law or in equity, nor of any statutory provision, requiring these facts to exist as a prerequisite to a compulsory partition, we doubt not that the allegation in regard to their existence is mere surplusage.' Such, we infer, must have been the opinion of the Supreme Court in New York, when it ordered an allegation in an answer, that the plaintiff had unreasonably refused to make partition by deed, to be stricken out as irrelevant and frivolous. 8 491. Allegation of necessity of Sale.-In Tennessee, it has been held that a sale of the property cannot be ordered unless the complaint contain an allegation of those facts which the statute prescribes as necessary to authorize such sale. But in California, it has been said "that the manner in which the partition is to be made constitutes no part of the cause of action, but is merely a part of the relief. While it is proper and perhaps advisable to ask for a particular mode of partition-there being two provided by statute-and to that end allege the facts upon which the plaintiff relies for the particular mode which he seeks, yet this is not indispensable, and a complaint which is silent upon the subject is good." It was further decided, in the same case, that, conceding that the complaint ought to state the facts upon which a sale rather than a division of the property will be claimed, still nothing further need be alleged than "that the premises cannot be divided by metes and bounds without prejudice." "Whether a partition can or cannot be made by metes and bounds is purely a question 12 Sellon's Pr. 216-7; 3 Chitty Pl. 1391. 3 Danl. Ch. Pr. 4th ed. 2027. * See secs. 424, 425, 433. of fact, and is the ultimate faot to be found, and therefore the only fact necessary to be averred under any system of pleading with which we are acquainted. The constituent facts, or those which lie behind, are merely probative, and need not be averred." It is not necessary to show in the complaint when the right to partition accrued. The statutes of limitation have no application to suits for partition.2 DeUprey v. DeUprey, 27 Cal. 331. The following form of complaint contains all the material averments necessary to sustain the applicant's demand for partition, in California and New York, and in other States having similar statutes. The plaintiff alleges: I. That he and the defendants C. and D. hold and are in possession, as tenants in common, of [here describe the property.] II. That the plaintiff has an estate therein, consisting of [here state what the plaintiff's moiety is, and whether it is of an estate of inheritance, or for life, or for years.] III. That each of the defendants, C. and D., has an estate in said property, consisting of [here state the interest of each of these defendants.] Wherefore, plaintiff prays that said property may be partitioned among the parties hereto, according to their respective interests therein; or, in case such partition cannot be made without great prejudice to said parties, that said property be sold, and the proceeds divided among them, according to their respective rights. X. Y., Attorney for Plaintiff. If any of the parties in interest be unknown, or the share of any of the parties be unknown, uncertain, or contingent, this fact must also be stated. According to Mr. Van Santvoord: "It is always advisable to set forth, as far as can be ascertained, the titles and interests of unknown owners; but it has been held that an averment that there are certain unknown owners,' without setting forth their exact interest in the premises, is sufficient."-2 Van Santvoord's Eq. Pr. 2d ed. 465, citing Hyatt v. Pugsley. 23 Barb. 303. When a lienholder is made defendant, the nature of his claim should be specially stated, (Styker v. Lynch, 14 N. Y. Leg. Obs. 116,) as: That the defendant E. is the owner and holder of a mortgage, executed on the day of by the defendant C upon his interest in said property, to secure the payment of a certain promissory note, etc. [here stating the substance of the note]; or, That the defendant F. holds a judgment recovered by him, duly given and entered in the Court, on the day of against the defendant D. for the sum in said county of which day of of For statutory provisions in regard to complaints in partition, see Rev. Code, Ala., sec. 3106; Gould's Ark. Dig., p. 811, sec. 2; C. C. P. of Cal., sec. 753; Genl. Laws Del., 528, sec. 8; Bush's Dig. of Fla., 616, sec. 2; Code of Geo., sec. 3996; Gross' St. of Ill., 469, sec. 2; Code of Iowa, sec. 3278; C. P. of Kans., secs. 614-5; Rev. St. Me., 694, sec. 2; 2 Comp. Laws Mich., sec. 6269; Genl. St. of Mass., 699, sec. 6; Bissell's St. of Minn., 888, sec. 3; Rev. Code Miss., sec. 1816; Genl. St. of Mo., 611, sec. 3; C. P. of Neb., secs. 802-3; Comp. Laws Nev., sec. 1328; Genl. St. of N. H., 463, secs. 2, 3; 3 Rev. St. N. Y., 604, secs. 8, 10; Swan's St. of Ohio, 591, sec. 2; Deady's Laws of Oregon, 255, sec. 420; Thompson & Steger's St. Tenn., secs. 3270, 3272; Genl. St. Vt., 353, sec. 2; Taylor's St. Wis., 1679, sec. 4. * Jenkins v. Dalton, 27 Ind. 78. 8492. The Replication.—In addition to his complaint or bill for partition, the applicant is, in many of the States, entitled to file a replication denying such allegations in the answer as he may choose to controvert. 2493. The service of process is so exclusively a matter of statutory regulation in the several States that we shall not undertake to treat of it in this work. This is equally true whether the defendant on whom process is to be served is an adult not under any disability, or is a feme covert, an infant, or a lunatic, or an unknown owner of whose age and condition nothing can be ascertained. In the case of unknown and non-resident owners, the summons is generally, if not universally, served by publication in some newspaper in pursuance of an order of the Court. To obtain this order, an affidavit must be made and filed showing that some of the owners are unknown, or are non-residents of the State, or cannot be found therein.1 2494. If the defendants fail to answer the complaint or petition within the time prescribed by law for them to do so, their defaults may be entered." In New York, no judg ment can be rendered in favor of plaintiff upon such default until he has introduced such proof of his title as, if unexplained, would entitle him to recover in ejectment. The same rule seems to prevail in Nebraska, but is there held not to apply to cases in which the defendant appears by filing a demurrer which is overruled." 3 For provisions in regard to notice of application for partition, see: Rev. Code, Ala., sec. 3107; Gould's Ark. Dig., 811, secs. 5-8; C. C. P. of Cal., secs. 756-7; Bush's Dig. Fla., 617, sec. 3; Code of Geo., sec. 3998; Gross' St. of Ill., 470, sec. 6; Rev. St. Me., 694, sec. 3; 2 Stanton's St. of Ky., 101, sec. 2; 2 Comp. Laws Mich., secs. 6275, 6276; Genl. St. Mass., 699, secs. 8-12; Rev. Code Miss., sec. 1817; Genl. St. of Mis., 612, secs. 6-7; Comp. Laws Nev., secs. 1330-32; Genl. St. N. H., 463, secs. 4-8; 3 Rev. St. N. Y. 604, secs. 14-18; Swan's St. of Ohio, 591, sec. 3; Deady's Laws of Oregon, 255, secs. 422-3; Brightly's Purdon's Dig., 1113, secs. 5, 6, 7, 12, 13, 14; Genl. St. R. I., 519, secs. 7-9; Rev. St. S. C. 530, sec. 5; Thompson & Steger's St. Tenn. secs. 3273-5; Genl. St. Vt., sec. 363; Taylor's St. Wis., 1680, sec. 10. Neilson v. Cox, 1 Cai. 121. Griggs v. Peckham, 3 Wend. 436; Jennings v. Jennings, 2 Abb. Pr. 6; Larkin v. Mann, 2 Pai. 27; Wilde v. Jenkins, 4 Pai. 491; Hamilton v. Morris, 7 Pai. 39; Porter v. Lee, 6 How. Pr. 491; Ripple v. Gilborn, 8 How. Pr. 456. + Mills v. Miller, 2 Neb. 314. For proceedings in default, see: Gould's Dig. Ark., 812, secs. 18-14; Bush's Dig. Fla. 617, sec. 4; 2 Comp. Laws Mich., sec. 6284; Genl. St. Mis. 612, sec. 11; Genl. St. N. H. 464, sec. 10; Taylor's St. Wis., 1682, sec. 19. CHAPTER XXIV. DEFENCES AND THEIR PRESENTATION. The Defendant's Pleadings, § 495. Pleas in Abatement, § 496. The General Issue, § 497. Defences allowed in the United States, § 498. Stating the Defendant's Title and Equities, 499. Intervening, § 500. Defences necessitating a reference to Legal Tribunals, § 501. Disputed Title, § 502. Disputed Title-States where it may be determined in the Partition Suit, § 503. Answers and Cross-bills, § 504. 495. Defendant's Pleadings.-In the States of California and New York, and probably in most of the other States where statutory provisions have not directed to the contrary, the proceedings and pleadings on the part of the defendant in partition correspond with those in other actions. If the complaint insufficiently states the origin, nature, or extent of the plaintiff's interest, the defendant may demur. No doubt he may also successfully interpose a demurrer whenever the complaint fails to show the existence of any fact without which the plaintiff is not entitled to the relief sought. In Indiana, it has been held that uncertainty in the description of the premises to be divided is not a ground for demurrer. The reasons given for this decision are that "the uncertainty in the description cannot be regarded in the same light as the omission of a fact necessary to be stated in order to constitute a cause of action. The uncertainty in the description 1 Reed v. Child, 4 How. Pr. 125; Jennings v. Jennings, 2 Abb. Pr. 14. might have been obviated by a motion to require the pleading to be made definite and certain by amendment." 406. Pleas in Abatement.-The statute 8 and 9 Wm. III., for the easier obtaining partitions of lands, enacted "that no plea in abatement shall be admitted or received in any suit for partition, nor shall the same be abated by reason of the death of any tenant." In the United States, pleas in abatement are generally received. But the suit, as a general rule, does not abate on the death of any of the parties, whether plaintiff or defendant. The heirs or other successors to the interest of such deceased person may be brought into Court and bound by the partition.2 497. The General Issue. The plea of non tenent insimul constituted the general issue in actions of partition at common law. Every allowable plea which could be interposed amounted to non tenent insimul. This plea put in issue all the material allegations of the complaint, and seems to have been so adequate as to authorize the defendant to place in evidence every conceivable fact which, if proved, would prevent the plaintiff's recovery." Godfrey v. Godfrey, 17 Ind. 8. See also 2 Van Sanvoor Eq. Pr. 18. In regard to defendant's pleadings, see Gould's Ark. Dig., 812, sec. 10; C. C. P. of Cal., sec. 758; Code Geo.. sec. 4001; Code Iowa. sec. 3282; C. P. of Kans., sec. 617; Rev. St. Me., 694, sec. 5; Genl. St. Mass., 699, sec. 16; C. P. of Neb., sec. 806; Comp. Laws Nev., sec. 1333; Genl. St. N. H., 464, sec. 9; 3 Rev. St. N. Y., 606, sec. 20; Genl. St. R. I., 521, sec. 14; Genl. St. Vt. 354, sec. 5; Taylor's St. Wis., 1681, sec. 16. "Frohoch v. Gustine, 8 Watts, 123; Requa v. Holmes, 16 N. Y. 195; Osgood v. Taggard, 18 N. H. 319. But where the statute of 8 and 9 Wm. III., or some similar statute, has not been adopted, a suit in partition abates on the death of one of the parties. Thomas v. Smith, 2 Mass. 479. The following is the plea of non tenent insimul, as shown in Tillinghast's Forms, p. 625: "And the said C. D., by G. H. his attorney, comes and says that he did not hold the premises in said petition of the said A. B. set forth, together with the said A. B. at the time of the commencement of the proceedings in this cause, as alleged in said petition of the said A. B.; and of this he the said C. D. puts himself upon the country: And the said A. B. doth the like, etc. G. H., Attorney for Defendant C. D." In Hunt v. Hazleton, 5 N. H. 219, it is said that the general issue in partition is "that the respondents do not hold, nor on the day of the exhibition of the petition in this behalf, nor ever afterwards did hold the said premises, nor any part or parcet thereof, together and undivided with the petitioner, as he, in his said petition, has supposed." But this is not now a sufficient plea in New Hampshire. See Morrill v. Foster, 5 Foster, 334. + 2 Sellon's Pr. 218. 5 Bethell v. Lloyd, 1 Dall. 2; McKee v. Straub, 2 Binn. 3; Bates r. McCrory, 3 Yeates, 192. C. & P.-39 |