mination, is regarded as final, because it leaves nothing to be done but to execute the directions therein contained.' It is obvious that if no appeal is permitted from the interlocutory judgment in partition, all the subsequent labor of the commissioners in making the allotment may be lost by a reversal for some error in fixing the interests of the parties. To avoid this result, an appeal from the interlocutory judgment is, in some of the States, authorized by statute. Under these statutes, an error in the preliminary decree must be corrected by an appeal therefrom, or by a motion for a new trial; because, " upon appeal from a final judgment, an order made in the cause which is itself by statute made the subject of a distinct appeal, cannot be reviewed." 520. Issuing the Writ.-In proceedings at law, after the entry of the first judgment in partition, the writ de partitione facienda was issued to the sheriff. By this writ he was commanded, with twelve good and lawful men of the neighborhood, to go to the manors and tenements, and there, in the presence of the parties, (who are to be forewarned,) if they be willing to be present, by the oath of said twelve men, respect being had to the true value of the property, to cause the same to be divided. The writ then proceeded, in accordance with the interlocutory judgment, to specify the moieties into which the property should be partitioned. After the partition was made, it was returned to the Court under the seals of the sheriff and the twelve jurors. This return certified that on a day named, the sheriff took with him twelve free and lawful men, (naming them,) and went on the manor, etc., and by the oath of said men, he caused to be divided the said manor, etc. The return here states the bounds of the several allotments, and to whom each allotment had been delivered and assigned. Upon this return, the final judgment of the Court is: "Therefore, it is considered that the aforesaid partition be holden firm and effectual forever."5 McFarland v. Hall, 17 Tex. 676. Cal. C. C. P. sec. 939. Regan v. McMahon, 43 Cal. 627. + McCourtney v. Fortune, 42 Cal. 387. 1 1 521. The commission issued in Chancery appointed certain persons as commissioners, and authorized them to meet at proper times and places, to enter upon, walk over, and survey the estate in question, and make a fair allotment thereof, and to distinguish such allotments by certain metes and bounds. The commission stated the names of the several persons entitled to allotments, and designated their respective interests. It authorized the summoning of witnesses and their examination upon oath, provided that their depositions should be reduced to writing, and concluded as follows: "And when ye have done and performed these things, ye shall certify and return the same into our Court of Chancery, without delay, wheresoever our said Court shall then be, the facts and proceedings in the premises, by your certificate fairly written on parchment, together with the said examinations and interrogatories, and also this writ closed up, under the seals of you, any three or two of you." When the commissioners have performed their duties by making the necessary allotments, they must prepare their certificate, "which must detail their proceedings and appoint the shares of each party, according to their allotments, to be enjoyed by them in severalty, distinguishing each part, if so directed by the commission, by metes and bounds. There is no prescribed form of a certificate: it is in the nature of a report; and, as a rule, it should follow, as nearly as may be, the language of the commission; and the particulars, description, and quantities of the several parts of the estate, may be described in a schedule." When the commission, with the accompanying documents, has been returned and filed, an order must be obtained confirming the certificate. The partition is next completed by conveyances executed in pursuance of the decree of partition, and the allotments made thereunder by the commissioners. ¿ 522. 2 Commissioners and their Duties.-In the United States, under the various statutes, the proceedings subsequent to the interlocutory judgment conform more nearly to 'Seaton's Forms, 190. See the opinion of Lord Redesdale upon the Commission of Partition in the case of Curzon v. Lyster, Seaton's Forms, 191. "Danl. Ch. Pr. 4th ed. 1158. the proceedings in Chancery than to those formerly had at law under the writ of partition. Immediately after entering this judgment, or at the same time by a provision in the judgment, the Court appoints a number of disinterested persons-usually three or five-to make the partition. They are commonly called commissioners, sometimes referees, and more rarely partitioners. They have no power to determine questions of title." "When the interlocutory judgment is entered, it is a conclusive determination of the rights of all the parties to the proceedings; and no question any longer remains open concerning their ownership, or title, or their undivided shares and interests. The commissioners have no other duty to perform, or authority to act, than to divide the estate according to the directions contained in the warrant."2 The statutes usually require the commissioners to be sworn3 before entering upon the discharge of their duties, and also to give notice to the parties interested of the time and place when and where they will make the partition. They are authorized to employ a surveyor when necessary, and are directed to divide the lands in such manner as to give each cotenant, as nearly as possible, his proportion in value. In some of the States, the land is first divided by the commissioners into equal parts, and they then determine by lot to whom each part shall be assigned; but more usually they are authorized to make the several allotments without having recourse to chance." In many of the States, they have power to determine whether a partition can be made without great prejudice to the cotenants, and may, instead of attempting a partition, report to the Court that they find a division prejudicial or impracticable, and that they therefore advise a sale. Allen v. Hall, 50 Me. 263. Examine this case for a general discussion of the duties and powers of commissioners. See also Kane v. Parker, 4 Wis. 123; Maryin v. Titsworth, 10 Wis. 320. *Brown v. Bulkley, 11 Cush. 168. Absence of oath of commissioners held to avoid partition, Massey v. Massey, 4 H. & J. 144. For contra opinion, see Wilcox v. Cannon, 1 Cold. 369; Bledsoe v. Wiley, Humph. 507. * Field v. Hanscomb, 3 Shep. 367; Lewis v. The C. I. Co. of Cinn. 23 Ind. 445; Buck v. Wolcott, 15 Gray, 502; Coply v. Crane, 1 Root, 69; Hunter v. Brown, 7 B. Monr. 285. This is the method preferred in Chancery. Danl. Ch. Pr. p. 1158, 4th ed. ! According to the Chancery practice in England, the proceedings of the commissioners are open; they may be attended by the parties and their solicitors; witnesses may be examined and cross-examined under the control of the commissioners; and every step may be taken necessary "to discover the truth and enable the commissioners to make a proper return." This evidence is confined to the proof of such facts only as will be necessary to enable the commissioners to make proper and impartial allotments. The first duty of the commissioners is to divide the subject-matter of the partition into as many shares and proportions as the decree or order under which the commission issues directs. They must next allot these proportions to the respective cotenants. In so doing, they must take into consideration all the circumstances. They have no right to make an arbitrary allotment. They should, so far as they can do so without injustice to the others, assign each cotenant the part most valuable to him, whether this special value arose from his having made improvements or from any other cause. If there are several parcels, they need not divide each parcel, but may assign one parcel to each cotenant. Unless authorized to do so by the decree under which they were appointed, commissioners cannot award owelty of partition." Neither the commissioners nor the Court can, unless so authorized by statute, divide the land into town lots and give part of the land to the public for streets. In Maine, the commissioners cannot assign to one of the parties the right to haul lumber on the other's lands, nor to drive logs or use a dam there. But in England it is understood that the commissioners may make such directions as are necessary to an equitable partition, and to assure to the parties an equitable enjoyment in severalty. They may therefore lay out a road 6 4 Danl. Ch. Pr. 4th ed. 1154. The same rule prevails in Maryland. Cecil v. Dorsey, 1 Md. Ch. 226. * Canning v. Canning, 2 Drewery, 434. Story v. Johnson, 1 Y. & C. Ex. 546. + Earl of Clarendon v. Hornby, 1 P. Wms. 446; Smith v. Barber, 7 Ohio, Part 2, p. 118. Mole v. Mansfield, 15 Sim. 41; Danl. Ch. Pr. 1157, 4th ed.; Peers v. Needham, 19 Beav. 316. Contra-Smith v. Smith, 10 Pai. 477; Wood v. Little, 35 Me. 112. Kitchen v. Sheets, 1 Ind. 139. 7 Dyer v. Lowell, 30 Me. 219. across the purparty of one of the cotenants, in order that the other may have a means of passing to and from his purparty; and they may order fences to be built and maintained between the lands assigned to the parties.' And no doubt the law, as thus understood in England, prevails in the greater portion of these United States. In a case in New York, where the subject-matter of the partition consisted of certain mills and water privileges, the Court, speaking of the power of the commissioners, said: "In short, the commissioners who are to make the partition may divide the dam and the lands under the water, and may make such provisions for keeping the different portions of the dam, and the waste gates and flumes in the same, in repair, and such regulations for the use of the water power which is not capable of actual partition without a destruction of its value, as the parties might make by a partition deed between themselves, and by agreeing for a compensation to be paid by one party to the other, if necessary, so as to make that partition perfectly equal, so far as human judgment is capable of producing equality in such a case. 523. Report.-When the commissioners have completed their allotments, they must prepare and return to the Court whence the commission issued a report showing what they have done, and the proceedings had before them. Lister v. Lister, 3 Y. & C. Ex. 544, 546. When * Smith v. Smith, 10 Pai. 478; Hill v. Dey, 14 Wend. 204; Morrill v. Morrill, 5 N. H. 134. The commissioners have not, in New Hampshire, authority to make partition by assigning to each of the cotenants the exclusive occupation for alternate periods of time. Crowell v. Woodbury, 52 N. H. 613. For provisions in reference to appointment and duties of commissioners, see Rev. Code, Ala., sec. 3108-13; Gould's Ark. Dig., 813, secs. 16-18; C. C. P. of Cal., secs. 763-4; Laws of Del., p. 528, sec. 5; Ib. 529, sec. 10; Bush's Dig. Fla., 618, sec. 6; Code of Geo., secs. 3999-4000; Gross' St. of Ill., 470, sec. 9; Code Iowa, sec. 3290; C. P. of Kans., sec. 619, p. 24; Rev. St. Me., 695, secs. 13-16; 2 Stanton's St. of Ky., 101, 102; 2 Comp. Laws Mich., secs. 6273, 6288-91; Genl. St. Mass., 790, secs. 21-24; Bissell's St. of Minn., 888, secs. 6-7; Rev. Code Miss., secs. 1818-27; Genl. St. of Mis., 812, secs. 16-21; C. P. of Neb., sec. 812; Comp. Laws Nev., secs. 1338-9; Genl. St. N. H., 464, secs. 10-13; Nixon's N. J. Dig., 4th ed., 666, secs. 1-6; 3 Rev. St. N. Y. 609, secs. 34-41; Swan's St. of Ohio, 591, secs. 4, 5; Deady's Laws of Oregon, 256, sec. 424; Brightly's Purdon's Dig., 1116, sec. 22; Rev. St. S. C. 532, sec. 10; Thompson & Steger's St. Tenn., secs. 3279-81; Genl. St. Vt., 354, sec. 6; Taylor's St. Wis., 1682, secs. Hathaway v. Persons Unknown, 32 Me. 137. |