Sweeny v. Meany

1 Miles 167

Opinion

Per Curiam.

The acts of assembly relating to partitions (Purd. Dig., tit. Partition) do not contemplate the issuing a writ to make partition between the tenants in common of an undivided portion of the land. This is obvious from the fact that the law bestows upon the inquest who are to act upon the breve de partitione facienda, the right and the duty to express an opinion as to whether the land held by the tenants in common is specifically the subject of division into parts, according to the judgment which has ascertained the rights of the parties, or that it cannot be divided without prejudice to or spoiling the whole. Act of the 11th of April 1799, sect. 2. There can be no such thing as an actual division of an umlivided portion : the object of setting out in ¡-eternity the pan or purpart of each tenant can not, in any case like this, he leached. For these reasons, these proceedings are irregular, and they must be set aside.

Rule absolute.