
    Moore v. McKiernan.
    Si a partition-of land ordered to be made in kind the notary cannot dispense with the drawing of lots- without an express agreement in writing made by the parties and notified to him.
    from the District Court of Madison, J.
    
      Amonett, for the appellant.
    
      H. W. Dunlap), for the defendant.
   The of the court was pronounced by

Rost,. J.

The plaintiff has appealed from a judgment setting aside a partition made by the notary appointed, by the court for feat purpose. The property 3ividecl'is a tract of land, of which the plaintiff owns one undivided fourth and ithe defendant the remaining three-fourths.

The grounds of the opposition to tire homologation of the partition, which pre•vailed in the court below and on which the appellee relies, are as follows: 3 st. 'The notary should have divided the land in four equal parts as-to value, and set apart the share of each party, so thatithc three lots of tho defendant should adjoin one another. 2d. The testimony shows that lot no. 4 is equal to one-fourth of ttho'value of the -whole tract, and the defendant insists that the notary should have assigned that lot to the plaintiff. 3d. The partition as made has injured the value of the three lots assigned to the defendant, at least five dollars per acre.

1st. Tho land was divided in four lots of equal dimensions, and having an equal portion of front on the Mississippi river, in strict conformity with the.order of survey granted by the judge on tho application of the plaintiff, and-without opposition from the defendant. Under that order, the surveyor had nothing to do -with tire value «of the lots. The intention of the parties was that tire, survey-made should be taken as the basis of the partition, and that tire value.-should be ;ascertainod by the experts. This was done in presence of ithe agents of both parties and without any opposition from them. Under the facts of the case, the notary could not have acted otherwise than he did.

2d. Without an express agreement of the parties, made in writing and notified to the notary, authorizing that officer not to draw lots, ho could not dispense with .that formality; and if it be true ¿hat the partition made .has injured the value qF the three lots assigned to the defendant, it is a risk which he took when he consented to a partition in kind, without making proper reservations.

The partition is legal and binding, and no reason has been or can be given for setting it aside.

It is therefore ordered that the judgment in this case be reversed. It is further ordered that the partition made between the plaintiff and defend•nnt, before Malcolm Wallace, a notaiy public, on the 29th March, 1848, be homologated and made the judgment of the court. It is further ordered that the defendant pay the costs of this appeal; those of the court bolo.w to be paid as provided by tho act of partition.  