
    SUPREME COURT.
    Romaine agt. McMillen and others.
    On sales of lands in the city of New York, in partition, the notice must he for six weeks, the statutory time. Rule 54 has no application to such sales. That rule applies only in cases where there is no time fixed by statute, as on a sale upon a hill filed to foreclose a mortgage, or sales oí infants or lunatics lands, #c,
    New York Special Term,
    
      January 1850.
    This was a suit in partition, wherein a decree of sale was made, directing the premises to he sold by a referee on giving three weeks notice. On such a notice, the premises were sold and the purchaser paid his ten per cent, but afterwards refused to take a deed and complete his purchase, on the ground that the notice of sale was defective. Motion is now made to set aside the sale on that ground, for a resale and that the decree be amended by requiring the sale to he made by the sheriff on giving six weeks notice.
    W. B. Smith, for Plaintiff
    
    Davidson & Bromley, for the purchaser.
    
   Edmonds, Justice.

The statute requires that sales in partition shall be had after notice, for the same time and in the same manner as is required by law on sales of real estate by sheriffs on execution (2 R. S. 326, § 56; Id. 330, § 81). That is a notice of six weeks (2 R. S. 386, § 34). The attorney for the plaintiff in this case seems, however, to have supposed that the present rule, number 54 (which is a transcript from the 139th rule of the Court of Chancery, and the late 96th rule of this court in equity), applies to the case. That rule permits lands in the city of New York to be sold on a notice of three weeks. It is general in its language, but was never intended to have nor could it have the effect of altering the time of notice prescribed by statute. It was intended only for those cases where the statute had omitted to prescribe the duration of the notice. Thus in sales on a bill filed to foreclose a mortgage, no time for the notice of sale is preScribed in the statute. So on sales of infants’ lands by special guardians, or sales of a lunatic’s lands by his committee.

But on sales by the sheriff on execution, or on sales by him or by any referee in partition, the notice must be for six weeks, because the statute so requires it.

This sale is therefore void and must be set aside, and the decree may be amended as required. This it is competent for the special term to do, because this is a provision merely consequent on directions already given.  