
    
      W. L. Wallace and Wife vs. John Gill et al.
    
    In oases of partition, the costs are usually to be paid out of the property, or by the parties, according to their interests.
    Plaintiff being entitled to one-seventh of two-thirds of a tract of land, filed his bill for partition thereof: on the return of the Commissioners, the whole estate was ordered to be vested in one of the defendants, and “the costs to be paid out of the estate.” Held, that plaintiff was liable for only one-seventh of two-thirds of the costs.
    The bill in this case was filed for partition of a tract of land. The intestate left a widow, entitled to one-third of the land, and seven children, (of whom plaintiff's wife was one, and John Gill, the defendant, another,) each entitled to one-seventh of two-thirds. A writ of partition was issued ; and the Commissioners recommended that the whole estate be vested in John Gill, on his paying, <fcc. The return was confirmed, and the “ costs ordered to be paid out of the estate.”
    The Commissioner taxed the costs, and required the plaintiff to pay only one-seventh of two-thirds thereof. The defendant, John Gill, insisted that plaintiff was bound to pay one-half; and at York, June sittings, 1831, made the question before Johnston, Ch., who confirmed the Commissioner’s taxation. The defendant appealed. .
    
      Williams, for appellant.
    
      Mills, contra.
   The opinion of thé Court was delivered by

O’Neall, J.

In cases of partition, the costs are usually to be paid out of the property to be partitioned, or by the parties according to their interests.

In the case before us, the whole property has been assigned to the defendant, and the complainant is entitled to receive only one-seventh of two-thirds of the assessed value. His share of the costs must be in the ratio of his. interest. It was said, in the argument, that' the defendant, before the bill was filed, purchased the interests of the other distributees. If this be so, he is liable to the whole of the costs except the complainant’s share: if it be not, he will be entitled to deduct, from each dis-tributee’s share of the assessed value of the land, his or her share of the costs, before he pays over the amount to him or her. This will be, as to himself and his co:defendants, paying the costs out of the land according to their interests.

It is ordered and decreed, that Chancellor Johnston’s decree be confirmed. .

JOHNSON and Martin, JJ., concurred.

Appeal dismissed.  