
    Obed Smith, by his next friend, v. Richard Pratt and Josiah Barber.
    Proceedings of courts of record, although not after the course of the common law, may be reviewed by writs of error, as well as by certiorari, in Ohio.
    
      A partition of land, consisting of - several tracts, made 'by petition under the statute, is erroneous where the petitioner is not a tenant in common with all the owners of each tract.
    Such error may be assigned as an error in fact.
    This was a writ of error to the common pleas, reserved from the county ot Medina.
    This record has once been before this court, and the facts are fully set forth in the report of the case of Smith v. Barber et al., 7 Ohio, 118, pt. 2. It was there holden not to be an error in law to set out to a petitioner in partition his whole interest in one of two tracts, of which partition is sought, unless it appear from the record that the tracts are owned by different co-tenants.
    The present plaintiff in error, one of the heirs of Obed Smith, deceased, but not a party to the former writ of error, after assigning that certain tenants by name held different proportions in the two tracts, sets out as a cause of reversal, that, at the time of making partition, the heirs of Obed Smith owned *three hundred acres in township number two, in the eighteenth range, and nono in tract number four, in the nineteenth range, which had been annexed to township number two; that there is not sufficient land left undivided in the township to satisfy this claim, but that undivided land yet remains in the tract, beyond the unsatisfied claims.
    
      Allen & Stetson, for plaintiff in error, cited :
    Ewing v. Hollister, 7 Ohio, 138, pt. 2; Walpole’s Lessee v. Ink, 9 Ib. 142; Winn v. The State, 10 Ib. 345; Prentiss’ case, 7 Ib. 130, pt. 2; Smith v. Barber, 7 Ib. 118, pt. 2; Walworth v. Walworth, Wright, 673; Clapp v. Bromaghan, 9 Cow. 304.
    Clark & Olnet, and S. J. Andrews, for defendants, relied upon :
    Hartshorn v. Wilson, 2 Ohio, 27; Bascomb v. Bascomb, 7 Ib 125; Lessee of Glover’s Heirs v. Ruffin, 6 Ib. 113; Ball v. Brigham, 5 Mass. 406; Cook v. Allen, 2 Ib. 462; Price v. Oliver, 13 Ib. 211; Drowne v. Stimpson, 2 Ib. 441; Vandusen v. Comstock, 3 Ib. 184 ; Winslow v. Anderson, 4 Ib. 376; 1 Swift’s Dig. 789; Tidd’s Pr. 1051; 2 Saund. 101; Weston’s case, 11 Mass. 417; Commonwealth v. Ellis, Ib. 465; Melvin v. Bridge, 3 Ib. 305; Edgar v. Dodge, 4 Ib. 670; Miller’s case, Ib. 565; Commonwealth v. Blue Hill Turnpike Co., 5 Ib. 420; Lees v. Childs, 17 Ib. 351; Adams’ case, 4 Pick. 25; Nightingale’s case, 11 Ib. 198; Independence v. Pompton, 4 Halst. 209; Baldwin v. Simmons, Ib. 196; Baldwin v. Calkins, 10 Wend. 167, Negus’ case, Ib. 38; Guest’s case, 9 Serg. & Rawle, 319; People v. Vermilyea, 7 Cow. 108; Monroe v. Baker, 6 Ib. 396; Linebough v. Rinker, Peck, 362; Bob v. State, 2 Yerg. 173; Lawson v. Scott, 1 Ib. 92; Huse v. Grimes, 2 N. H. 208; State v. Thompson, Ib. 236; Durham v. Thompson, Ib. 196; Trigg v. Boyce, 2 Hay. 280; Perkins v. Hadley, Ib. 146; Commonwealth v. Peters, 2 Mass. 125; *Street v. Francis, 3 Ohio, 277; Lawton v. Commissioners, 2 Caine, 179; Grænvelt v. Burwell, 1 Salk. 144.
   Lane, C. J.

The defendants object to any examination of these proceedings, because they are pending before us by error, and not by certiorari. The distinction between the respective offices of these writs is well marked in England and in some of the states, but in our practice the difference in the forms of these writs, the mode of allowance, the process, the assignment of errors, and the judgment, is so slight, that it has almost disappeared; and, although no case is known, or believed to exist, where judgments proper have been reviewed by certiorari, or whore the proceedings of other public bodies, except courts of common law, have been cai’ried up by writs of error, yet the acts of courts of record, other than their common law proceedings, are daily examined by writs of' error, and several reported cases show the existence of the practice. 4 Mass. 670; 9 Ib. 465; 4 Pick. 125; Wright, 673; 7 Ohio, 130, 178, pt. 2; 9 Ib. 142.

Our proceedings, for dividing lands under the statute of Ohio, must not be confounded with the common law writ for the same-purpose. .That is properly a suit to which the tenants to the freehold are the regular and the necessary parties, and which binds all rights, by its proper vigor as a judgment.

Our petitions for partitions are, in no just sense, adversary. They confer no new rights, but merely define those already existing.. They have, in truth, no proper parties, but are analogous to proceedings in rem. 6 Ohio, 269; 9 Ib. 120. All presumptions are-to be made in their favor. 10 Ohio, 250; 6 Ib. 255. And their validity is not to be collaterally impeached. 10 Ohio, 250; 12 Ib. 253.

Where the exercise of jurisdiction depends upon the existence-of a fact dehors the record, the act is void, if the fact is shown not to exist. 4 Wheat. 77; 12 Ohio, 207, 253. And if a court falsely assume the existence of the fact on which their jurisdiction depends, and carry into the record their finding of its existence, the proceedings, although void, *yet admit reversal on error, since it may afford the only effectual protection of the party. Upon this principle, judgments against femes covert, or a person deceased, although void, are reversible at common law, upon the-assignment of the error in fact-. So the actual residence of a defendant is assignable as an error in fact, to reverse a foreign attachment, because, say the court, the party seems to have no other-remedy. 2 Ohio, 28.

This reasoning applies to the case before us. The petitioner avers he is a tenant in common with persons unknown, in the two-tracts of land of which he seeks partition. The “persons unknown,” from whom he demands partition, are the real owners, whoever they may be. The right, therefore, to his remedy, depends upon the existence of a tenancy in common, between the real owners of the land which ho seeks to divide, of whom he represents himself to be one. If no tenancy in common subsists between the real owners of the land to be divided, the preliminary fact,, the existence of which he assumes, and which alone renders the-interposition of the court necessary, yields no basis for further action. Land, under such proceedings, can not well.be set out in •severalty anywhere, certainly not in one of two tracts where ■division is demanded, without the sacrifice of some one’s rights ; ■it therefore becomes necessary, for the preservation of all interests, ■to reverse such erroneous proceedings.

Order of partition reversed.  