manner as if all the lands mentioned in the decree were situate within this State. 23.-Decree for partition in another State when enforced in this State. Where real estate may be partly in this State and partly in another State, and the deceased person from whom it was derived by descent or devise, was, at the time of his death, a resident in some other State, or was a resident of none of the States in which he held lands, and in this last case, the lands of which he was seized in this State were of less value than the lands of which he was seized in any other State, the courts of the State in which such deceased person had his residence at his death, or in which he held lands of greater value than those he held in this State shall have full power and authority, under any law passed by the Legislature of such State, substantially in accordance with the provision herein made on this subject, to decree partition of the lands in this State, together with those within such other State, in the same manner as if the whole real estate were within the jurisdiction of such court, and in the same manner as in the courts in this State, are directed and authorized to do by the preceding section, as to the lands of deceased persons resident here at their death, or having lands of greater value here than in any other State, and in case of any person, having an interest in the final decree, made as aforesaid in another State, as to lands in this State, shall, within twelve months after the same may be entered up in the courts in said State, produce the record and proceedings of such Courts of Record duly certified, to a Superior Court of any county in this State, where any of the lands in this State lie, the court, on petition of ex parte in such case, shall order such proceedings to be entered of record in the court of this State, and order that the said decree shall be of the same force and validity as if it had been a decree of the court in this State in which the petition is filed, upon a petition and regular proceedings had thereon, and the decree of the court of such other State, and the proceedings on it by petition in the Superior Court in this State confirming and giving it validity, being enrolled in the said court of this State and registered in all the counties where the lands lie in this State, shall pass the lands in this State, according to the decree, and shall vest estates in severalty therein declared, as to said lands, in the same manner and with the same effect in law, as if the lands in this State had been so allotted on a petition for partition, according to the provisions of the former sections of this chapter. 24.-Judge to decide in reference to law passed by another State. Where a copy of a decree and proceedings of a suit in any other State shall be produced, as in the preceding section, and also when it is necessary for a Superior Court to be certified that its decree of a partition of lands without this State, and within the territory of another State, can have effect therein, it shall be competent for the Judge of the Superior Court before which the existence of a law in such other State is to be proved, to decide whether any Act of the Legislature of such State has been passed. 25.-Time allowed married women, infants, &c. On petition under this Chapter, as against feme coverts, infants, persons non compos mentis, and against all parties, against whom judgment shall be taken by default on publication, the final decree shall be binding, in like manner, on the same terins and to the same extent, and with the like saving for persons under disabilities, as are provided in title four, chapter one, section twenty-seven, of the Code of Civil Procedure. 26.-Pay of commissioners. The commissioners, appointed to divide lands lying in this and another State, shall be entitled to three dollars per day for their services, which, with all fees, expenses and costs, shall be paid as the court may direct. {27.-Partition of personal property, how made. When any persons entitled as tenants in common of personal property, desire to have a division of the same, they, or either of them may file a petition in the Superior Court for that purpose; and the court, if it think the petitioners entitled to relief, shall appoint three disinterested commissioners, who, being first duly sworn, shall proceed within twenty days after notice of their appointment, to divide such property as near equally as possible among the tenants in common: Provided, That no claimant shall work on any such lands until such division shall be made. 28.-Report, confirmation thereof. The commissioners shall report their proceedings under the hands of any two of them, and file their report in the office of the Clerk of the Superior Court within five days after the petition made, of which the clerk shall give the parties or their attorneys ten days notice before any motion to confirm the same is heard; and if such report is confirmed, a decree shall be entered accordingly and vest in each tenant in common his share in severalty. 29.-When sale ordered. If a division of such personal property cannot be had without injury to some of the parties interested, and a sale thereof be deemed necessary, the court shall order a sale to be made by some officer of the court or other competent person; who shall file his report of sale in the office of the clerk of the court within ten days after sale made, of which the parties shall have notice as prescribed in the last section. 30.-Notice of sale. The sale shall be made after twenty days' notice, by advertisement in three or more public places in the county, and shall be on such terms as the court may direct. 31.-Confirmation and effect of deed. Upon confirmation of the report, the court shall secure to each tenant in common, his ratable share in severalty of the proceeds of sale; and the deed of the officer or person appointed to sell, when such deed is directed to be made, shall convey to the purchaser such title and estate in the property as the tenants in common had. Where in an action for the recovery of land, the plaintiff showed title under proper proceedings in partition, and the defendant admitted possession: Held, that the plaintiff was entitled to recover. Wright . McCormick, 77-158. 32.-Compensation of commissioners, &c. The commissioners nominated to make a division, and the officer or person appointed to make a sale of personal property held in common, shall receive for their services a sum to be fixed by the court and taxed in the bill of fees and costs, all of which shall be paid by the parties in such manner as the court may decree. 33.-Procedure as in special proceedings. The procedure in all cases by petition, under this chapter, shall be the same, in all respects, as prescribed by law in other special proceedings, except as modified by this act; and any person authorized by section sixty-one of the Code of Civil Procedure, may be made a party to any proceeding under this chapter. 34.-Repeal. Chapter eighty-two, Revised Code, and chapter thirtynine, acts eighteen hundred and sixty and eighteen hundred and sixty-one, are hereby repealed. In a petition for partition, A et al. v. B, and B pleads "sole seizure," under a deed from C, who being made a party to the suit, alleges fraud on the part of B in procuring the deed, and prays to have the same cancelled: It was error in the Probate Court to dismiss proceedings at the cost of the plaintiff. And on the appeal of the plaintiff to the Superior Court, it was the duty of the presiding judge to have eliminated from the transcript and decided the point of law raised by the plea of sole seizure; as it was also his duty to have the issue of fraud in procuring the deed submitted to, and passed upon by a jury. After this, if necessary, the court could have issued a procedendo to the Probate Court. McBryde v. Patterson, 73-478. Where, in a special proceeding for partition, issues of fact were raised by the pleadings: It was held to be error to refuse a motion to submit the issues so raised to a jury for decision. Covington v. Covington, 73-168. The courts have no power to order a sale of land for partition when one of the defendants interested therein is tenant by the curtesy and objects to the sale. Parks v. Siler, 76–191. Under the provisions of Chapter forty-one, Laws 1851-52, the former County Court of Granville had authority to order the sale of land for partition. When the record of the court in such case shows no order of sale, but a report of sale, a new sale ordered and confirmed and a deed made to the purchaser, it sufficiently appears that such sale was made by order of the court. Allen v. Chappell, 76—287. CHAPTER V. SPECIAL PROCEEDINGS IN RELATION TO MILLS. [Acts of 1868-69, Chapter 158, amended by Acts of 1876-77, Chapter 197.] SEC. 1. How persons wishing to SEC. build a water mill to pro- 2. Court to appoint three com- 3. The third commissioner to 4. Duty of commissioners, lowed. 7. Power of court on return of report. 8. Duty of persons to whom leave is granted. 9. Time to build or repair water mill. 10. Injury done by erection of mills. 11. Dams shall be abated as a nuisance. 12. Actions heretofore begun. 13. Yearly damages. 1.-How persons wishing to build a water mill to proceed. Any person wishing to build a water mill, who hath land on only one side of a stream, shall issue a summons returnable to the Superior Court of the county in which the land sought to be condemned, or some part of it, lies, against the persons in possession and the owners of the land on the opposite side of the stream, and against such others as are required to be made defendants by the Code of Civil Procedure; and the procedure shall be as is provided in other special proceedings, except so far as the same may be modified by this chapter. All persons may be made defendants who are permitted to be by section sixty-one of the Code of Civil Procedure. 2.-Court to appoint three commissioners. If no just cause should be shown against the building of such mill, the court shall appoint three freeholders, one of whom shall be chosen by the plaintiffs, another by the defendants, and the third by the court, or if the plaintiff's or |