cc. Notice of sale.-The provisions of the Revised Statutes, relative to the omission of the sheriff to give notice of sale under an execution, applies to sales in partition. Lefevre v. Laraway, 22 Barb. 167. Where the sale was directed to be advertised three weeks, instead of six, as required by law, but was, in fact, advertised six weeks, held, that the error might be corrected. Alvord v. Beach, 5 Abb. 451. The provision of 2 R. S. 368, § 38, requiring the sale to be by parcels, is merely directory. Cunningham v. Cassidy, 7 Abb. 183; S. C. 17 N. Y. (3 Smith), 276; Woods v. Monell, 1 Johns. Ch. 503.

dd. Hamilton county.-Notices of sales of land therein may be published in Fulton county. Laws of 1860, ch. 297; Laws of 1866, ch. 696; Laws of 1867, ch. 162; Laws of 1870, ch. 662.

ee. Liability of sheriff.-He is liable for an accounting to the parties interested for the proceeds of a sale on partition, although the attorney in the action conducts the sale and receives the proceeds. Van Tassel v. Van Tassel, 31 Barb. 439. For the omission of a sheriff to pay over to the county treasurer the proceeds of a sale of lands in partition, the period of limitation commences to run at the time of such omission. Ib.

ff. Death of plaintiff.-On the death of a plaintiff, in an action for partition, and an account of rents, the heir-at-law may revive the suit as to the partition, and the personal representatives as to the account. Hoffman v. Tredwell, 6 Paige, 308. And where plaintiff died, after judgment of partition and sale, and the advertisement of sale had been commenced, and such of his heirs as were not already parties defendant were substituted in his place as plaintiffs, held, that it was not necessary to change the title of the cause and advertise anew. Thwing v. Thwing, 9 Abb. 323; S. C. 18 How. 458.

gg. Death of defendant.—In a partition suit, where a defendant, after the expiration of his time to answer and before answering, died, and the action was continued without making his heirs parties, held, that the subsequent proceedings were void as to the interest of such deceased defendant. Requa v. Holmes, 16 N. Y. (2 Smith), 193; S. C. 26 N. Y. (12 Smith), 338. See Waring v. Waring, 7 Abb. 472. Where one of several defendants dies, pending the action, in order to proceed, it is only necessary to obtain, within one year, an order under section 121. Gordon ▼. Sterling, 13 How. 405.

hh. Adding parties by amendment. It seems that an action for partition is within section 122, as being for the recovery of real property, so that a person not a party, but having an interest in the subject, may be made a party by amendment. Waring v. Waring, 3 Abb. 246.

ii. Discharge of purchaser.-Amendable defects of the pleadings or proceedings in an action for partition are not grounds for a discharge of the purchaser. Noble v. Cromwell, 27 How. 289; Aff'g S. C. 26 Barb. 475; 6 Abb. 59. As mere irregularities in the Bogert v. Bogert, 45 Barb. 121; Noble v. proceedings may be amended nunc pro tunc. 279; S. C. 34 N. Y. (7 Tiff.), 536; Aff'g S. Cromwell, supra; Rogers v. McLean, 31 How. C. 31 Barb. 304; Clark v. Clark, 14 Abb. 300; S. C. 21 How. 479. As to discharge of purchaser, see Mead v. Mitchell, 5 Abb. 92; S C. 17 N. Y. (3 Smith), 210; Blakeley v. Calder, 15 N. Y. (1 Smith), 617; S. C. 13 350; S. C. 17 N. Y. (3 Smith), 218; Waring How. 476; Croghan v. Livingston, 6 Abb. v. Waring, 7 Abb. 476; Disbrow v. Folger, 5 id. 53; Rogers v. McLean, 10 id. 306. A purchaser may be discharged on the ground of unreasonable delay, to his prejudice, on the part of the sellers. Jackson v. Edwards, 7 Paige, 387. Nor will he be required to complete the purchase, where process has not been properly served. Cook v. Farnam, 21 How. 286; S. C. 34 Barb. 95, sub nom. Cook v. Farren; 12 Abb. 359, sub nom. Cook v. Farmer. See O'Reilly v. King, 28 How. 408; S. C. 2 Rob. 587.

. Judgment roll.-In a partition suit, the rights of the parties are settled by the final decree, and not by the enrollment thereof. Lynch v. Rome Gas Light Co. 42 Barb. 591. The plaintiff in an ejectment suit may offer such decree as proof of his title id. See Laws of 1851, ch. 277, as to record ing decrees.

kk. Re-sale.-Where a purchaser neglects to comply with the terms of a sale, within a reasonable time, if a re-sale would be more beneficial to the parties, the court will deprive him of the benefit of his bid, and order a new sale. Jackson v. Edwards, 7 Paige, 387; S. C. 22 Wend. 498. And see, as to re-sale, Lefevre v. Laraway, 22 Barb. 167.

ll. Proceeds, when brought into court.-Where an undivided share of real estate was devised to a husband in trust for his wife, during her natural life, and to her heirs forever, subject to a life estate in the husband after the death of the wife, held, on partition of such undivided share, that the proceeds thereof must be brought into court. Noble v. Cromwell, 27 How. 289; Aff'g S. C. 26 Barb. 475; 6 Abb. 59. See Sears v. Hyer, 1 Paige, 483; Hallenbeck v. Bradt, 2 id. 316.

mm. Inchoate right of dower.-As to provision for, see Bartlett v. Van Zandt, 4 Sandf. Ch. R. 396; Benedict v. Seymour, 11 How. 176; Disbrow v. Folger, 5 Abb. 54. Laws of 1840, ch. 167 and 379.

nn. Inchoate tenancy by curtesy. Its value depends not only upon the principles applicable to life annuities and survivorships, but upon the fact of issue, and if none, upon the likelihood of issue. Benedict v. Seymour, 11 How. 176.

00. Amendments. An error in the petition as to the interests of the parties, may be amended on the trial. Thompson v. Wheeler, 15 Wend. 342; Noble v. Cromwell, 27 How. 289; Aff'g S. C. 26 Barb. 475; 6 Abb. 59. And, where the plaintiff omits to file any of the papers necessary to the regularity of the judgment, he may be allowed to file them nunc pro tunc. Waring v. Waring, 7 Abb. 473; Croghan v. Livingston, 6 Abb. 350; 17 N. Y. (3 Smith), 218; Noble v. Cromwell, 27 How. 289; Aff'g S. C. 26 Barb. 475; 6 Abb. 59. So, an error in the judgment of sale, as to advertising the sale, may be corrected even after the sale is made. Alvord v. Beach, 5 Abb. 451. So, in the case of infants, if an error appears on the face of the referee's report as to the extent of their interests, the court will correct it on its own motion. Safford v. Safford, 7 Paige, 259; Carpenter v. Schermerhorn, 2 Barb. Ch. R. 314. And without sending back the report. id. Where the names of certain defendants were inadvertently omitted in the copy summon's filed, and they had actually been parties, held, that it was an error amendable after judgment and sale. Van Wyck v. Hardy, 11 Abb. 473; S. C. 20 How. 222; S. C. Aff'd, 39 How. 393.

pp. Reasonable diligence of plaintiff. Where an infant plaintiff, after the appointment of a guardian, commenced an action for partition by filing notice of lis pendens, but thereafter neglected to proceed with reasonable diligence, held, that a party defendant, although not served with a summons, might apply by petition to have the plaintiff's proceeding vacated. Lyle v. Smith, 13 How. 104.

17. Lien of attorney.-The plaintiff's attorney acquires a lien for his disbursements, on plaintiff's share of the property in suit; nor can the plaintiff divest such lien by an assignment of his interest pending the action. Creighton v. Ingersoll, 20 Barb. 541.

rr. Costs.-The court has no discretion ary power to charge either party with entire costs on the ground that he unreasonably refused to make partition by deed. McGowan v. Morrow, 3 Code R. 9. But where the plaintiff makes persons defendants who have no interest in the subject of the suit, their costs are not chargeable upon the fund or against their co-defendants, but against the plaintiff, personally, unless they were made defendants at the request of the others. Hamersley v. Hamersley, 7 N. Y. Leg. Obs. 127. Where a doweress is a necessary party, she is chargeable with a portion of the costs. Tanner v. Niles, 1 Barb. 560. See Phelps v. Green, 3 Johns. Ch. R. 302; Crandall v. Hoysradt, 1 Sandf. Ch. R. 40; and note to section 321.

act.

a. Actions for the determination of claims to land are subject to the same rules as other actions. See Peck v. Brown, 26 How. 350; S. C. 2 Rob. 119; Laws of 1855, ch. 511; Hammond v. Tillotson, 18 Barb. 332, overruling Crane v. Sawyer, 5 How. 372; S. C. 1 Code R. N. S. 30. By whom maintainable, see Onderdonk v. Mott, 34 Barb. 106.

b. Judgment on default.-A judgment entered on failure to answer may be opened. Mann v. Provost, 3 Abb. 446.

c. Pleadings.-It seems that a complaint which is sufficient under the Revised Statutes, relative to conflicting claims to real property, cannot be sustained as an ordinary complaint in ejectment. See Hager v. Hager, 38 Barb. 92.

Falls Railroad Co. 29 Barb. 391; Brady v. Weeks, 3 Barb. 157; Clark v. Storrs, 4 Barb.

562; Brown v. Cayuga and Susquehanna Railroad Co. 12 N. Y. (2 Kern.), 486.

a. Statutes.-See provisions of 2 R. S. 303 (title 1, ch. 5, part 3); Laws of 1840, ch. 239; Laws of 1846, ch. 159; Laws of 1847, ch. 337. Section 18 of title, supra, relative to proof of actual entry under title, is expressly retained by this section. Lawrence v. Williams, 1 Duer, 585. So sections 8, 30, 34, of the same title, relative to description of premises, verdict and writ of possession, are still in force. Budd v. Bingham, 18 Barb. 498. So is section 31, relative to expiration of plaintiff's title. Lang v. Wilbraham, 2 Duer, 171. And section 37, relative to a new trial. Rogers v. Wing, 5 How. 50; Lang v. Ropke, 1 Duer, 701.

b. Ejectment, when sustainable.An action of ejectment will lie whenever a right of entry exists, and the interest is of such a character that it can be held and enjoyed, and possession thereof delivered in execution of a judgment for its recovery. Rowan v. Kelsey, 18 Barb. 484; Child v. Chappell, 9 N. Y. (5 Seld.), 246. And against a railroad company, for laying their track over land dedicated by the plaintiff to public use as a street, and for running their cars on such track. Wager v. Troy Union Railroad Co. 25 N. Y. (11 Smith), 526; Adams v. Saratoga and Washington Railroad Co. 10 N. Y. (6 Seld.), 328; Rev'g S. C. 11 Barb. 415. And for land under water, granted by the commissioner of the land office for the erection of docks, etc., for commercial purposes. Champlain and St. Lawrence Railroad Co. v. Valentine, 19 Barb. 484. And by a lessee before entry, against a stranger in possession, and wrongfully withholding it from him, when the lease is for a term commencing on a day named. Trull v. Granger, 8 N. Y. (4 Seld.), 115. See Spencer v. Tobey, 22 Barb. 260. A right of possession in presenti is all that is necessary to maintain ejectment. Trull v. Granger, supra; People v. Mayor, etc. of New York, 10 Abb. 111; Hunter v. Trustees of Sandy Hill, 6 Hill, 411; Bryan v. Butts, 27 Barb. 503; S. C. Aff'd, 28 How. 582 (n.), sub nom. Burns v. Bryant; McLean v. Macdonald, 2 Barb. 534. Possession of real estate is prima facie evi

dence of a seisin in fee. Hill v. Draper, 10 Barb. 454; Barnhart v. Greenshields, 28 Eng. Law and Eq. R. 77; Moltonner v. Dimmick, 4 Barb. 566. Where the owner of land conveys it to another, reserving the portions included in the highway, he may maintain an action of ejectment against his grantee for encroachments upon the highway, or for an exclusive occupation thereof. Etz v. Daily, 20 Barb. 32. Ejectment is maintainable against one who enters into possession of another's lands, with his assent, under a contract of purchase, after default in payment of the purchase money. Powers v. Ingraham, 3 Barb. 576. In such case, no notice to quit, nor a demand of the amount due, or of the possession, nor tender of a deed, is necessary before bringing an action. Hotaling v. Hotaling, 47 Barb. 163. It will lie by a lessee against his lessor. Olendorf v. Cook, 1 Lans. 37. So one of several tenants in common, who is in possession of real estate under an agreement, by which the others have released and agreed to convey their interests to him, may alone maintain an action for an injury thereto, and recover the whole damages. Sparks v. Leavy, 19 Abb. 364; S. C. 1 Rob. 530. See 2 R. S. 341, § 11.

c. Ejectment not sustainable unless the plaintiff has a legal estate in the premises. Wright v. Douglass, 3 Barb. 556. Nor for a mere easement. Wilklow v. Lane, 37 Barb. 244. Nor by a purchaser, under a mere contract of purchase, which is silent on the subject of possession and right of entry. Kellogg v. Kellogg, 6 Barb. 116. Nor against a mortgagee in possession. Bolton v. Brewster, 32 Barb. 389. Nor by a mortgagee against his mortgagor. Sahler v. Signer, 37 Barb. 329. Nor by a plaintiff where title to the premises rests upon an assignment thereof made as security for a debt. Murray v. Walker, 31 N. Y. (4 Tiff.), 399. Nor against one who is not in possession, though he has leased it, and the lessee is in possession. Champlain and St. Lawrence Railway Co. v. Valentine, 19 Barb. 484. See Van Buren v. Cockburn, 14 Barb. 118; S. C. below, 2 Code R. 63. Nor against one who has erected a gutter on his own

d. Abatement. - An action for real property does not abate by reason of the death of the plaintiff or defendant. See Laws of 1865, ch. 357.

e. Attorney's authority. Although the provisions of 2 R. S. 305, §§ 17, 21, apply to actions under the Code, Howard v. Howard, 11 How. 80, still, the general rule remains, that a retainer will be presumed, and the adverse party, having no notice or ground of suspicion, may act on that presumption. Hamilton v. Wright, 37 N. Y. (10 Tiff.), 502; S. C. 5 Trans. App. 1. As to what is sufficient authority, see Howard v. Howard, supra. The order to compel an attorney to produce his authority, must direct the same to be produced to the officer granting the order, and also state the place where it is to be presented. Turner v. Davis, 2 Denio, 187. See Harris v. Mason, 10 Wend. 568.

f. Husband and wife.-In an action to recover an alleged separate estate of a wife, she must sue alone, and not with her husband. Hillman v. Hillman, 14 How. 456. In a joint action by husband and wife for the recovery of land claimed in right of the wife, no separate judgment can be given in favor of the wife alone; they must recover jointly, or not at all. Bartow v. Draper, 5 Duer, 130. Where a inarried woman has been wrongfully ejected from the actual possession of land, held by her for her separate use, she may recover the same in her own name without joining her husband. Darby v. Callaghan, 16 N. Y. (2 Smith), 71.

g. Lands conveyed during infancy. Before a party can recover possession of lands conveyed by him during his infancy, he must

make an entry upon the lands and execute a second deed to a third person, or do some other act of equal notoriety in disaffirmance of the first deed, and such act must be alleged in the complaint. Voorhies v. Voorhies, 24 Barb. 150.

maintain ejectment against his co-tenant, h. Tenants in common, in order to must show an actual ouster, or some act amounting to a total denial of his right. Edwards v. Bishop, 4 N. Y. (4 Comst.), 61. It is not necessary that all the tenants in common should unite in an action of ejectinent, except when the action is a substitute for a writ of right. Kellogg v. Kellogg, 6 Barb. 117.

i. Defendant.-If the premises are actually occupied, the occupant must be made a defendant. Taylor v. Crane, 15 How. 358; Mosier, 11 id. 574; S. C. Aff'd, 7 N. Y. Lucas v. Johnson, 8 Barb. 244; Ellicott v. (3 Seld.), 201; Schuyler v. Marsh, 37 Barb. 350; People v. Ambrecht, 11 Abb. 97; S. C. Aff'd, 24 How. 610 (n.); Pulen v. Reynolds, 22 d. 353; Van Horne v. Everson, 13 Barb. 526. See Waldorph v. Bortel, 4 How. 358; 25 Barb. 54. Several occupants of the same Redfield v. Utica and Syracuse Railroad Co. building may be made joint defendants. Pearce v. Ferris' Executors, 10 N. Y. (6 Seld.), 280.

j. Ejectment for premises not actually occupied may be brought against one claiming title thereto; but such claim must be more than a mere idle declaration of ownership. Banyer v. Empie, 5 Hill, 48; Abeel v. Van Gelder, 36 N. Y. (9 Tiff.), 513; S. C. 2 Trans. App. 99; Shaver v M'Graw, 12 Wend. 558; Fosgate v. Herkimer Manufacturing and Hydraulic Co. 12 Barb. 352; Johnson, 8 Barb. 244. S. C. 12 N. Y. (2 Kern.), 580; Lucas v. See McGregor v.

Comstock, 16 Barb. 428; S. C. 17 N. Y. (3 Smith), 162. A person claiming an interest in, but not in possession of the premises, is burn, 14 Barb. 118; S. C. 2 Code R. 63. not a necessary party. Van Buren v. CockSeveral tenants, who rent different depart ments of the same house, may be made joint defendants. Pearce v. Colden, 8 Barb. 522. The possession of the public must be exclusive, to authorize the action against an individual as an occupant. Redfield v. Utica and Syracuse Railroad Co. 25 Barb. 54. In an action to recover lands conveyed by the plaintiff during his infancy, a grantee of the plaintiff's grantee cannot be made a joint defendant with the latter. Voorhies v. Voorhies, 24 Barb. 151.

fendant with his tenants. Fosgate v. Herkik. Landlord.-He may be made a de mer Manufacturing Co. 12 N. Y. (2 Kern.), 580. And when he is not made a defendant, but defends for his tenant, he is liable for costs. Farmers' Loan and Trust Co. v. Kursch, 5 N. Y. (1 Seld.), 558. He may be admitted to defend on showing he is landlord, or has a privity of estate or interest with the defendaut. Godfrey v. Townsend, 8 How. 398