Jackson ex dem. Wynkoop v. Myers

14 Johns. 354

• Court: New York Supreme Court
• Decided: October 15, 1817
• Status: Published

Opinion

Spencer, J.

delivered the opinion of the court. Several objection^ were made, on the argument, to the partition, which took place in the common pleas of Greene county ■ the right of the plaintiff to a portion of the premises, about three eighth parts, being conceded, unless it was.devested by the partition.

Without going into a consideration of all the objéctions to the validity of that partition, we are of opinion, that it is invalid and null, in one respect. It appears, as well from the petition of Johannes Myers, on whose application the partition was made, as by the report of the commissioners, that the lessor of the plaintiff had no interest whatever in the ten acre lot, which was to be divided, and actually was divided. He ivas a tenant in common in the mill-dam tract, but not in the ten acre tract. Thus a partition was attempted to be effected, of a tract of which none of the Wqnkoops were owners, together with a tract in which they had a tenancy in common, by blending two dis~inct rights. -

This is contrary to the letter and spirit of the act. authority given by the statute must be, at least, substantially, pursued, and the 15th sect. (1 Greenl. ed. Laws, 17 0. a partition in those c5ses only where the land intended to be divided is owned in common; and partition must be made between all the tenants in common. The parties before the court must be tenants in common of all the land to be divided, and here, confessedly, they were not.

Judgment for the plaintiff.