
    John S. Ingram et al. vs. William War.
    W. filed his petition in the prohate court, for a partition of a lot of land ; alleging that he had intermarried with one of several persons to whom the land had been jointly conveyed ; the other persons alleged to he interested in the land, answered the petition, and denied that W. had any right, title, or interest in the land or any part thereof; and W. offered no evidence in support of his petition ; Held, that the petition does not present a prima facie case of title in the petitioner, and the answer denying all title in him, and he failing to establish his title by competent proof, his petition must be dismissed.
    On appeal from the probate court of Clairborne county, Hon. Nicholas McDougall, judge..
    At the February term, A. D. 1841, of the probate court of Clairborne county, War, the appellee, presented a petition stating that he was entitled in right of his wife, who was one of the heirs of Charlotte and Amaziah Ingram, to an undivided portion of a certain lot of ground in the town of Port Gibson, and of three negro slaves, and praying for an order for partition of the same under the statute. The petition was received and ordered to be recorded ; William C. Wells, Thomas Bruce and C. W. Wilson nominated commissioners, and publication directed to be made to the April term, 1841, pf the court.
    At the April term, 1841, Amaziah Ingram was appointed guardian ad litem of Joshua 0., Charles S., Clarinda S., and Malinda A. M. Ingram, minors, who were interested in the property of which partition was prayed, and the court being satisfied that publication had been legally made, the cause was continued to the May term; and at the May, June, and July terms it was also continued.
    At the August term, John S. Ingram for himself, and Ama-ziah Ingram as guardian ad litem, filed their answer to War’s petition. The answer denies that War had any right, title, or interest in or to the lot of ground, and that the court has any jurisdiction in regard to the negroes.
    Without hearing or requiring any evidence from War of his title to the property of which he claims partition, the court appointed Thomas Bruce, C. W. Wilson and David McComb, commissioners to divide the real estate, the claim to partition of the negroes having been abandoned.
    To this decision of the judge of probate, decreeing a partition, and appointing the commissioners, the appellees excepted, and prayed an appeal to this court.
    
      John B. Coleman for appellants.
    The first error which we assign, is that the judge decreed partition, and appointed commissioners to make it, without requiring any evidence from War in support of his title, which was denied by the parties in possession.
    The petition prays partition of a lot of ground, in which War claims to have an interest in right of his wife. The appellants, in their answer, deny that War has any right, title, or interest in or to the lot in question.
    An issue was thus presented, which rendered it incumbent on War to make out his title; the bill of exceptions shows that he neither did, nor attempted to do so.
    The statute of partition, (How. &. Hutch. 353,) provides that “ any person being a coparcener, joint tenant, or tenant in common, &c., may apply,” &c. It is incumbent, then, upon the party applying for partition, to satisfy the judge, that he occupies one or the other of these positions; that he is either a coparcener, joint tenant, or tenant in common. Even if no opposition is made, it would seem to be but consonant to reason and justice, that the judge should require some evidence of the petitioner’s title; but when that title is denied, to decree a partition without the introduction of a particle of testimony in support of it, strikes us as being not only in violation of law, but as being opposed to every principle of common justice and common sense.
    The statute of New Jersey on the subject of partition, is almost identical with ours. In adjudicating upon that statute, the supreme court of New Jersey, in Van Riper v. Berdan, 2 Green’s R. 132, say: “ To give such a construction to the statute, as would make it the duty of the justice or judges to appoint commissioners, and direct a partition upon every application, regardless of the rights of others, would be dangerous in the extreme; even if it could not affect their paramount title, it might subject them to great inconvenience and expense. The powers and duties of the justice or judges under the act in question, are, I think, plain. It is an act for the partition of lands; but of what lands 'l Of such, and such only as are held by coparceners, joint tenants, or tenants in common. The justice or judges must then be satisfied that such cotenancy exists, before he can make any nomination of commissioners; they ought to require the applicant to lay before them such documentary and other evidence, as at least prima facie, to establish the fact of a cotenancy; unless that is done, no nomination’ ought to be made.”
    That a party applying for partition, must exhibit proof of his title to the property in which partition is claimed, before it can be decreed him, is decided in Brownell v. Brownell, 19 Wend. 365; Griggs v. Peckham, 3 Wend. 436; Clapp v. Bromagham, 9 Cow. 530; Wilkin v. Wilkin, 1 Johns. Ch. R. 117.
    The second error assigned, is that the court decreed partition on the application of War alone, while the petition shows that he claims merely in right of his wife, and that therefore the petition should have been in the joint names of himself and wife.
    War’s wife, by his own showing, was the “ coparcener, joint tenant, or tenant in common” of the lot in question. The petition then should have been filed, and the proceedings carried on in the joint names of War and wife.
    The third error assigned, is that the court appointed David McComb one of the commissioners, while no publication has been made as to him.
    Wells, Bruce, and Wilson were the commissioners nominated, and the publication specified that unless objections were made, &c., they would be appointed. Wells died before the decree was made, and McComb was appointed in his place, without any publication of his name having previously been made. The statute, (How. & Hutch. 353, 354,) requires that the names of the commissioners nominated to make partition, shall be published for two months successively. The object of the statute, in requiring the names of the commissioners to be published, is to give all persons interested in the land an opportunity of objecting if they think proper, to any of the nominees. This object would be defeated if the judge could, at pleasure, and without any objections having been made to those nominated, substitute others for them.
   Mr. Justice Thacher

delivered the opinion of the court.

Appeal from the probate court of Clairborne county.

War filed his petition in the probate court for a partition of a lot of land in the town of Port Gibson. The petitioner alleges that he has intermarried with one of several persons to whom the lot of land had been jointly conveyed. To the petition an answer was subsequently filed in behalf of the other persons alleged to be interested in the said lot of land, some of whom are infants, which denies that War has any right, title or interest in the lot of land, or in any part thereof. No proof was adduced upon either side, but the court decreed that partition should be made by commissioners according to the mode prescribed by law.

It will be seen, from the foregoing statement of facts contained in the record, that the petition does not present a prima facie case of title in the petitioner, and that the answer absolutely denies all title in him. The statute having been given to the use of any person being a coparcener, joint tenant, or tenant in common, an answer to a petition under this statute asserting the absence of all title and interest in the petitioner to the land sought to be divided, puts in issue his title to the remedy by questioning the claim to the capacity in which alone it can be enjoyed. It is the business of the petitioner to establish, his right to the remedy, and if it be denied, he should sustain it by competent proof. The record does not' show that this requisite to compel a favorable decree was produced by the petitioner.

The judgment of the court below is reversed, with directions to dismiss the appellee’s petition in the court below, but without prejudice to his future proceedings in the matter.  