Young v. Young

Mr. Justice Meiicu r

delivered the opinion of the court, May 5th 1879.

This was an action of partition. It was brought by th,e defendant in error against certain persons interested in the lands, sought to be partitioned, but it wholly omitted to name the plaintiff in error, although he had an estate in fee therein. Regardless of his rights, without naming him in the declaration, and without any notice to him, the case proceeded to judgment quod partitio fiat. The parties to the action then agreed upon and nominated three commissioners to make partition. The court appointed them. They reported, valuing the lands. All the parties declined to take at the valuation, and a sale was ordered. At this stage of the proceedings, the court amended the record, by adding the name of the plaintiff in error as party defendant. It then set aside the finding of the commissioners, but ordered them to meet again, with notice to the plaintiff in error, and that he also have leave to take or refuse at the new appraisement. All the parties declining to take at this appraisal, the court ordered a sale. To the action *424 of the court three errors are assigned, but they may be considered together.

It was manifest error to enter a judgment quod partitione fiat without all the co-tenants having been named of record. Unless all the parties in interest were named, no complete title could pass under the proceedings. The title of one not named would remain undisturbed. The error ivas not cured by the mere addition of the name of the plaintiff in error to the record as one of the defendants, after the judgment. There was no amendment of the praecipe or of the narr. He was deprived of all opportunity of being heard in opposition to the judgment, and of any voice in the selection of commissioners to pass on the question of partition and appraisement. While the power to amend by the addition of a name omitted through mistake, may be liberally exercised, yet no one should be forced on the record at so late a period as to deprive him of any substantial right that he might have asserted if he had been made a party at the commencement of the proceedings. Here he was compelled to accept appraisers to pass on his rights who had been chosen by others. This was an abuse of the equitable principle which underlies the right of amendment. The amendment ought not to have been allowed.

As the judgment ought not to have been entered, nor the amendment made under the circumstances, the learned judge erred in ordering the sale: Blackwell v. Cameron, 10 Wright 236 ; Richards v. Rote, 18 P. F. Smith 248. The assignments are therefore sustained.

The order is set aside, and the judgment reversed.