
    Joshua Thomas, Esq., Petitioner for Partition, versus Daniel Smith and Benjamin Staples.
    Upon the death of a respondent named in a petition for partition, his heirs cannot be admitted to defend, and the petition abates.
    The petition was presented at the September term, at Alfred, A. D 1803, and alleged that the petitioner was seised in fee of five undivided eighth parts of a parcel of land described in the petition ; and that Benjamin Staples and Daniel Smith were seised of the other three eighth parts thereof; and prayed that the petitioner’s purparty might be divided and set off" to him, to hold in severalty.
    At April term, 1806, a plea in bar was filed by the said Daniel Smith, and by Joseph Staples and others, calling themselves “ heirs at law to the said Benjamin Staples, deceased, who died since said petition was presented to this Court.”
    To this plea in bar the petitioner replied, the respondents demurred to the replication, and the petitioner joined in demurrer.
    [ *480 ] * Upon reading the case to the Court, it was inquired by them whether the statute providing this process contained any provision for the heirs of a party to the original process to come in, upon the death of their ancestor, and become party to the proceedings. Upon looking into the statute, no such provision was found.
   By the Court.

Executors and administrators are authorized by statute to come in and prosecute or defend actions which survive the death of the party ; because, acting era autre droit, they maintain the rights of their testator or intestate. But no statute authorizes heirs to prosecute or defend, in a writ, or on a petition for partition, the suit commenced by or against their ancestor. When the ancestor dies seised, and on his death the heir enters, he becomes seised in his own demesne, and does not claim to hold the land in the right of anot ter.

In this petition, the petitioner claims to hold the land in common with Daniel Smith and Benjamin Staples; and it is very clear that, at common law, the rights of no other persons can be put in issue. In a real action against the tenants as joint disseisors, on the death of one of the tenants, the demandant may prosecute against the survivor, for the same seisin and disseisin are in issue between the parties on record. By the English statute of 8 and 9 Will. 3, c. 31 the death of one of the tenants shall not abate a writ of partition. We have no such statute, and the petitioner cannot further prosecute his suit.

Bartlett and Emery for the petitioner.

Mellen and King for the respondents.

Whereupon the petitioner moved for leave to discontinue his petition, suggesting the death of Benjamin Staples since the filing of the petition as the ground of his motion.

Leave to discontinue. 
      
      
         Mitchell & Al. vs. Starbuck & Al. 10 Mass. Rep. 5. But by the statute of 1822, c. 71, § 1, it is provided that the process shall not abate by the death of any person other than a sole petitioner interested in the estate of which partition is prayed ; and if any person so interested shall die before judgment, the legal representatives of such person may be admitted as parties to the proceedings.
     