Boyd v. Dowie
New York Supreme Court
THIS action was tried at an adjourned Special Term of the Supreme Court, in Delaware county, in November, 1872. The complaint shows, substantially, that each party to the action is the owner in fee simple of one-fourth part of over 1,200 acres of land situated in the county' of Delaware, known as “ Solomon Green’s Pisgah tractwhich land is described in the complaint.
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THIS action was tried at an adjourned Special Term of the Supreme Court, in Delaware county, in November, 1872. The complaint shows, substantially, that each party to the action is the owner in fee simple of one-fourth part of over 1,200 acres of land situated in the county' of Delaware, known as “ Solomon Green’s Pisgah tractwhich land is described in the complaint. That each party obtained title to his or her share or interest in the land through several mesne conveyances from the aforesaid Solomon Green. The conveyances mentioned in the complaint and the deeds given in evidence on the…
1Opinion of the CourtBalcom, J.
There was no compulsory process by the common law to effect a partition of real estate. (1 Wash, on Real Prop. p. 560, 3d ed.) And no compulsory partition of real estate can be made under our statutes, unless the owners are in possession thereof “as joint tenants, or as tenants in common.” (2 R. S. 317, § 1.)
The parties to this action are not in possession of any portion of the land described in. the complaint, either as joint .tenants or as tenants in common, and therefore this action cannot be maintained as one for the partition of -vuch lands.
The plaintiff’s counsel insists that the action…
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