
    Hector and Henry Smith v. Josiah Barber et al.
    In making partition among several tenants in common of several tracts of land, owning in the same proportions, it is regular to assign to any one, or to each one an entire tract.
    The prosecution of two writs of partition, at the same time, and for the same object, does not vitiate the regular proceedings in one, upon which parti-, tion is made.
    A deputy sheriff, summoned for that purpose, by the principal sheriff, may legally act as one of the commissioners of partition, although he after, ward make the final return.
    This is a writ of error brought to reverse a judgment of the-court of common pleas of Medina county.
    The record shows that at the March term of the court of common pleas, 1824, Richard Pratt filed his petition, setting forth that, he was seized as tenant in common in fee simple, with certain-other persons to him unknown, of all that part of township No. 2, in range 18, of the Connecticut Western Reserve, and tract num;ber 4, in range 19, annexed to said township in the original draft ■and classification of the Connecticut Western Reserve, of which partition had not previously been had-; that the proportion of .said petitioner in the township and annexation was two hundred and twenty acres, and praying for partition, and to have his share set off to him in severalty.
    Satisfactory proof being made that legal notice of the application had been given, the court, after examination of the petitioner’s title', granted the prayer of the petition, and appointed Abel Dickinson, Abraham Freese and Isaac Sage, commissioners, and Abraham Freese, surveyor, to make partition, and the case was continued.
    At the next succeeding term of the court, in September, 1824, Josiah Barber, John Balls, William Eldridge, and Hezekiah Latimore, filed their petition in said court, setting forth that they also were tenants in common with the said Richard Pratt and others, unknown owners of said township and annexation, ^setting forth also their several shares in proportions, and praying, according to the statirte in such case made and provided, to be allowed to come in and be made parties to, and join in the petition of the said Richard Pratt. Upon the hearing of this last petition, it was ordered that the prayer thereof be granted, and that partition be made accordingly. And it was further ordered that a writ of partition bo issued to the sheriff of the county, requiring him, by the -oaths of Abel Dickinson, Abraham Freese, and Isaac Sage, judi-cious freeholders of the county, to cause partition to be made, etc., ¡and the cause was again continued.
    At the next term of the court, to wit, at February term, 1825, it was ordered that Isaac Dimend be appointed in place of Abraham Freese, and that his name be inserted in the writ of partition accordingly.
    During the same February term of the court, two writs of partition were issued, bearing date the 28th day of that month, requiring the sheriff to cause partition to be made by the oaths of said freeholders, Dickinson, Sage, and Dimend. These writs were returned on March 2, 1825, and during the said February term of •the court. And accompanying.said return, and constituting a part thereof, was a report of the freeholders, showing that they had set -off to the said Pratt, Barber, Bolles, Eldridge, and Latimore their proportions of said township and annexation in severalty within the limits of the township. The said several proportions are described by metes and bounds, and protracted on a map or plat accompanying the report. The return shows further that the freeholders were duly sworn. It is signed S. G-. Potter, sheriff, by Abel Dickinson, deputy. It appears that Dickinson was summoned by sheriff Potter, and the other two freeeholders by Dickinson as deputy sheriff.
    Afterward, at the same term, the court having examined the report, accepted aud approved the same, ordered that the partition made be final and perpetual, and that the costs should be paid by the petitioners in proportion to the land claimed and aparted to them severally.
    The plaintiffs in error are the heirs and representatives of one-of the owners of the undivided part of said township and annexation.
    The following errors are assigned :
    1. It appears that the demandants were tenants in common, *with others in township number 2, range 18, and in tract 4, range 19, and their shares or proportions have been set off in one of the tracts of which partition is demanded, and is not shown that the whole of said two tracts were owned by the same proprietors and in the same proportions.
    2. Two writs of partition were issued and returned.
    3. The sheriff acted as one of the committee.
    4. General errors.
    Humphrey, for plaintiffs in error.
    Otis, for defendants.
   Judge Hitchcock

delivered the opinion of the court:

In order to a correct understanding and correct decision of this-case, it is necessary that we should have reference to the manner in which lands in the Connecticut Reserve were originally partitioned or divided among the original proprietors or purchasers'from the State of Connecticut. This tract of country containing three millions of acres was sold by the state of Connecticut to a. company of individuals denominated the Connecticut Land Company, with the exception of five hundred thousand acres, now-constituting the county of Huron. It was conveyed to three individuals in trust to be by them conveyed in severalty to the several members of the company in proportion to their respective interests, so soon as the particular lands to which they were entitled, should be ascertained. For the purposes of partition and division, the whole country was surveyed into townships of five miles square. A number of these townships were again subdivided into smaller tracts, and were usually denominated equalizing townships. Where an entire township was not of average value, one of these smaller tracts was classified with it and called an annexation. In the final division the owner of the township owned the annexation; and if there were different proprietors, as was often the case, they owned the same proportion in the annexation as in the township. It seems that tract number 4, in range 19, was classified with or annexed to township number 2, in range 18, and that to this township there were several owners or proprietors. Of course these several proprietors must have owned in tract number 4, in the same proportion that they did in the township.

*In considering the first error assigned, the question which first presents itself for consideration is, whether in proceedings for partition, where there are different tracts of land owned by two or more proprietors, the proportion of one of those proprietors can be set off in one of the tracts thus owned; or whether each one of the proprietors shall be compelled to take a proportion of each and every tract. This question, however, is fully settled by the statute. These proceedings were had under the “ act to provide for the partition of real estate,” passed February 16,1820. Chase’s Stat. 1162. In section 4 of'this act it is provided, that “ when partition of more than one tract is demanded in the petition, the freeholders appointed to make partition shall set off to each of the petitioners his proper proportion in each of the several tracts of which partition is demanded, unless the several tracts, of which partition-is demanded, shall be owned by the same proprietors, and in the same proportions in each tract; in which case the whole share of any proprietor in and to all the several tracts may be set off to such proprietor in any one or more of said tracts, if, in the opinion of said freeholders, such partition will be more advantageous to the proprietors generally than to set off to each proprietor 'his proportion in each of the several tracts.” And this provision of the statute is in accordance with the common law. “If two mesnes descend to two parceners, and one mesne is worth twenty shillings per annum and the other ten shillings per annum, in this case partition may be made between them in this manner, to wit: the one parcener to have the one mesne and the other parcener the other mesne; and she which hath the mesne worth twenty shillings per annum, and her heirs, shall pay a yearly rent of five shillings, issuing out of the same mesne, to the other parcener and her heirs forever, because each should have equality in value.” Lit.'Tenures, 251. It is said, however, that it does not appear affirmatively in this case that the two tracts were both owned by the same proprietors and in the same proportions. True, it does not so appear very explicitly, nor does the contrary appear. We know, however, as a matter of fact, from the manner in which the Connecticut Reserve was partitioned among the original proprietors, that this township and annexation must have been owned originally by the same proprietors and in the same proportions; and the presumption is that the same state of things exists. Further, %e are bound to suppose that the court of common pleas would not have confirmed this partition until satisfied by competent proof that both tracts were owned by the same proprietors and in the same proportions. To justify this court in reversing a judgment of the court of common pleas, it is not sufficient to show that by possibility there may have been an error. The error itself, if, as in this case, an error in law, must be apparent upon the face of the record.

The second error assigned is that there were two writs of partition. This was unnecessary, and is perhaps an irregularity; but still it makes no difference in the final result. The petitioners have obtained their several proportions of land precisely the same, if not in the same manner they would have done had there been but one writ of partition. Besides, admitting that it were erroneous, what injury have the present planitiffs sustained thereby? Are they in any worse situation than they would have been had the same lands been set off under one writ? We do not see that they are. As a general rule, no one can complain of an error in a record or judgment exeept he who has been injured thereby. We do not suppose, however, that in this there is anything erroneous.

The third error assigned is that the sheriff was one of the committee. This assignment is not supported by the record. It does ■appear, however, that Abel Dickinson, one of the freeholders appointed by the court to make partition at the March term, 1824, ■•did, in this particular case, act as deputy sheriff, when the partition was actually made, in March, 1825. There is nothing in the law to prevent a deputy sheriff from being appointed, and even ■acting as one of three freeholders to make partition of real estate. Even should the sheriff himself be one of the number, I should not feel disposed to reverse the proceedings on that account. There would seem, it is true, to be some impropriety in such course of proceedings, as the writ is directed to him. The only duty, however, which he has to perform is to summons or notify the freeholders, see that they are sworn, and make return of the process. The partition itself is made by the freeholders. In this -case the sheriff has returned that he summoned Dickinson him.self, and that he summoned the other freeholders, by Dickinson, his deputy, and the general return is signed Samuel G-. Potter, sheriff, by Abel Dickinson, deputy. In this we see no error.

*Upon a careful examination of the record in this case we have not been able to discover any error, the proceedings and orders of the court of common pleas will therefore be affirmed with costs.  