
    Benjamin Swett and Others, Petitioners for Partition, versus Benjamin Bussey and Another.
    A petition for partition does not lie, where the applicants hold the whole of the land, of which partition is prayed.
    Costs ma.y be given upon a petition for partition, where an issue in law only is determined.
    The petitioners, of which there were three, made application to the Common Pleas for this county, alleging themselves to be seised in fee, as tenants in common, of a certain tract of land described in their petition, lying in Hampden, in this county, stating their several shares or purparties, and praying that partition might be made of the said tract, and their respective shares set off in severalty, according to the law in such case provided. The Court below ordered notice to be given in the public papers, that all persons interested might come in and show cause, &c. At the succeeding term, Benjamin Bussey and Seth Kewpton appeared as [*504] respondents, and the proceedings being * removed into this Court by demurrer and appeal, the counsel for the respondents moved the Court to dismiss the petition, and that they might be severally allowed their costs.
    
      Brown, for the petitioners,
    objected to the claim of the respondents for costs; and he cited the opinion of this Court in the case of Symonds vs. Kimball in error,  that the statute authorizes costs only where an issue has been joined and tried.
    
      Brown for the petitioners.
    
      Button and Godfrey for the respondents.
    
      
       3 Mass. Rep. 299.
    
   Per Curiam.

The process provided by the statute for the more easy partition of lands, &c. designates a case in which the applicant is to have a part or share, set off and divided from the rest. The case stated in this application is not of that description. The applicants, if qualified in point of age and mental capacity to maintain this process, are also competent to effect among themselves, and by their own agreements and contracts, every valuable and proper purpose, which they can be supposed to have in this petition. The notice ordered upon it is a nullity, if there is any truth in the averment of the petition that the petitioners hold in common the entire land to be divided. And if this is refuted, or made doubtful, by the order taken upon the petition at the suggestion of the petitioners, and by the appearance of the respondents to contest the fact, what further proceedings are to be had ? The statute plainly implies that this process is only maintainable, where the applicant has a share only, and the respondent, or some other person not applying, had an interest, respecting which the partition by this process will be conclusive, to some purposes at least, after due notice. It will be dangerous to give a sanction of this kind to an agreement to divide, where all the parties professedly interested are the applicants for a division among themselves. The objection to the allowance of costs in this case, in support of which the case of Symonds vs. Kimball was cited, is not maintained by [ * 505 ] that decision; since in this case *an issue in law was in fact joined in the court below, and the judgment rendered upon that issue was the judgment appealed from.

The petitioners took nothing by their petition ; and costs were ordered to be taxed for each of the respondents. 
      
      
        Stat. 1783, c. 41.
     