EWING v. HOUSTON,
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4 U.S. 67 (1799)
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U.S. Supreme Court
EWING v. HOUSTON, 4 U.S. 67 (1799)
4 U.S. 67 (Dall.)
Ewing et Ux. Plaintiffs in Error,
Houston et Ux.
High Court of Errors and Appeals of Pennsylvania.
July Session, 1799
IN error from the Supreme Court. A writ of summons in partition was issued by the plaintiff in error, in the Court of Common Pleas of York county, returnable to September term 1792, by which the defendant in error was summoned to show wherefore the following property, held by the parties as tenants in common, should not be divided: to wit; 'one ferry at the river Susquehanna in Hellam township in the county aforesaid, six messuages, one barn, four stables, four gardens, one orchard, 250 acres of arable land, and 371 acres of woodland, and the usual allowance of six per cent. with the appurtenances in the same township of Hellam, in the said county of York.' The writ being returned, 'summoned,' both the parties appeared by their attornies, the plaintiffs filed a declaration, setting forth their title, and demanding partition of the same estates that were specified in the writ; and judgment was rendered, by consent, in general terms, 'that partition be made.' A writ of partition, accordingly issued on this judgment, returnable
to December term 1792, when 'the sheriff returns the writ, and that partition hath been made according to the command thereof;' both the parties appeared by their attornies; and judgment was rendered, 'that the partition so made be confirmed, and be and remain firm and stable forever.' The writ of partition recited the words of the writ of summons, except that in describing the place, where the several estates were situated, the recital added the township of Windsor to the township of Hellam, stating the premises to lie 'with the appurtenances in the same township of Hellam and Windsor, in the county aforesaid.' It then proceeded to recite the judgment, 'whereupon it was considered by the said Court, that partition thereof between the parties aforesaid be made:' and concluded with the mandatory clause to the sheriff: 'Therefore we command you that taking with you twelve honest and lawful men of your bailiwick, &c. in your proper person you go to the said ferry, &c. And there by the oaths or affirmations of the said twelve men, in the presence of the parties aforesaid, by you for that purpose to be warned (if upon being warned they will attend) and the said six messuages, &c. (specifying all the estates mentioned in the writ except the ferry) with the appurtenances (having respect to the value thereof) into two equal parts you cause to be parted and divided, and one of the said equal parts to the said plaintiffs, &c. and the other equal part unto the defendants, &c. to hold to them in severalty you assign and deliver, so that neither the said plaintiffs, &c. nor the said defendants, &c. have more of the said ferry, six messuages, & c. with the appurtenances than to them of right belong or appertain. And the said plaintiffs, &c. their equal half part thereof to them allotted, and the said defendants, &c. the other equal part thereof to them allotted, may hold in severalty. And that the partition thereof so openly and distinctly by you in form aforesaid made you have before our Judges, &c.' The inquisition held under this writ of partition, after naming the persons constituting the inquest, states 'that they were duly sworn and affirmed to divide and make partition of one ferry, at the river Susquehanna in the township of Hellam and county of York aforesaid, six messuages, &c. with the appurtenances in the same township of Hellam and Windsor in the county aforesaid, between the plaintiffs, &c. and the defendants, &c.' And after dividing and parting the whole into two equal parts, the inquisition proceeds to a specification, that the inquest 'have parted and divided the said ferry, messuages, lands and premises with the appurtenances into two equal parts, having regard to the true value thereof. And the lot marked on the annexed draught No. 1. containing the said ferry at the river Susquehanna, with all the flats, &c. thereunto belonging; the lot marked in the said draught No. 2, &c.; and [4 U.S. 67, 69]