Halsted v. . Halsted

I think the referee was justified, by the order of reference and by the practice of the court, in taking proof, and passing upon the question of the validity of the mortgage from Augustus M. Halsted to the plaintiff, although it was not raised by any formal issue in the pleadings. Prior to the Revised Statutes, an incumbrancer upon the undivided share of an estate was not a proper party in the suit for the partition of the whole property. (Harwood v. Kirby, 1 Paige, 470.) His interest was not affected by the partition. The lien attached to the divided share in case of actual partition, and in…