
    Railey, &c. vs Railey.
    
      Oct. 1.
    Error to the Woodford County Court.
    
      Division of Land.
    
    Case stated.
    The acts of 1794 and 1797 do not authorize the County Court to appoint commissioners to divide land descended amongst those interested, unless there has been a refusal by some of the parties interested to divide, and then only upon notice to all persons interested.
   Judge Marshall

delivered the opinion of the Court.

This was a motion in the Woodford County Court, for the appointment of Commissioners to divide the land descended from Peter I. Railey among his heirs, three of whom appear to be infants, and the fourth is probably also a minor. On motion of the guardian of one of them, six Commissioners were appointed, with power for any two to act. And at the next term, the report of a division made by two of the Commissioners was approved, and ordered to be recorded, after overruling the motion of the guardian of two of the heirs to quash it.

The proceeding was intended to be had under the acts of 1794 and 1797, which are based upon the act of 1792. But even if these acts should be deemed to be in force, so far as they cover the case of land descended, the proceeding cannot be sustained ; because it does not appear that there had been any refusal to make the division by any of the parties interested in it. And it cannot be sustained under the act of 1811, the first and second sec. tions of which apply particularly to the case of land descended. First, because under that act the division must be made by three Commissioners to be appointed for that purpose: And second, because that act expressly requires that the applicant should have given reasonable notice of his intended application to all parties interested, which does not appear to have been done. And under the act of 1797, as well as that of 1811, deeds should have been ordered to be made pursuant to the division, when confirmed.

Tlie statute of 1811, on the subject of dividing land descended, (St. Law, 1066) requires that notice to all the parties interested in the division shall be given of an application for the appointment ot Commiss’rs to divide, and that deeds shall be made when the division is confirmed.

Mor ¿head § Reed for plaintiff.

We are of opinion, that the act of 1811, (Stat. Laic, 1066, supercedes, and virtually repeals the previous acts, so far as they apply to the cases provided for in the first and second sections of the subsequent act of 1811. And this proceeding is erroneous throughout, for the want of notice by the applicant, to the other parties interested. This defect is not supplied by the appearance of some of those parties when the report was made. One of them has not yet become a party to the proceeding. And the statute requires all' to be notified before the application is made to the County Court.

Wherefore, the order confirming the report, and the order appointing the Commissioners, are reversed, and the case is remanded, that the applicant may proceed de novo, should he think proper to do so.  