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CHAP. 167. deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding; unless it appears that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.

Not to apply to Halifax or incorporated towns.

Terms of years

under two pre

and what act

interruption of

(2.) This section shall not apply to the city of Halifax, or to any incorporated town. R. S., c. 112, s. 28; 1892, c. 31, s. 1.

33. Each of the respective periods of years, in the ceding sections next two preceding sections mentioned, shall be deemed how calculated, and taken to be the period next before some action or proonly shall be an ceeding wherein the claim or matter to which such period the prescription. relates, was, or is, brought into question; and no act or other matter shall be deemed an interruption within the meaning of the said two sections, unless the same has been submitted to or acquiesced in for one year after the party interrupted has had notice thereof, and of the person making or authorizing the same to be made. R. S., c. 112,

No presumption admissible on

proof of enjoy.

ment for less

prescribed by

the said two sections.

s. 29.

34. In the several cases mentioned in and provided for by the said two sections of the claims to ways, or other period than that easements, water-courses, the use of any water or lights, no presumption shall be allowed or made in favor or support of any claim upon proof of the exercise or enjoyment of the right or matter claimed for any less period of time or number of years than for such period or number mentioned in the said two sections as is applicable to the case and to the nature of the claim. R. S., c. 112, s. 30.

Time during which party could not act

tions through disability not to be computed against him.

Exception.

35. The time during which any person otherwise capable of resisting any claim to any of the matters in the underthe two sec said two sections mentioned is an infant, idiot, person of unsound mind, married woman or tenant for life, or during which any action or proceeding has been pending, and has been diligently prosecuted, until abated by the death of any party or parties thereto, shall be excluded in the computation of the periods in the said two sections mentioned, except only in cases where the right or claim is thereby declared to be absolute and indefeasible. R. S., c. 112, s. 31. 36. Where any land or water upon, over, or from which such any way or watercourse, or use of water has tion in certain been enjoyed or derived, is held under or by virtue of any term of life, or any term of years exceeding three years from the granting thereof, the time of the enjoyment of any such way or other matter as herein last before mentioned during the continuance of any such term, shall be excluded in the computation of the said period of forty years in case the claim is within three years next after the

Terms of years, &c., excluded

from computa

caseses.

end or sooner determination of such term resisted by any CHAP. 167. person entitled to any reversion expectant on the determination thereof. R. S., c. 112, s. 32.

SET-OF AND COUNTERCLAIM.

to set off and

37. This Chapter shall apply to the case of any claim Chapter to apply of the nature hereinbefore mentioned, alleged by way of counter claim set-off or counterclaim on the part of any defendant. by defendant. R. S., c. 112, s. 5.

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CHAP. 168.

TITLE XXVI.

OF CERTAIN PROCEEDINGS IN RELA-
TION TO REAL PROPERTY.

Short title.

"Land "includes

Enlargement of

as to partition.

CHAPTER 168.

OF THE PARTITION OF LAND.

SHORT TITLE.

1. This Chapter may be cited as "The Partition. Act."

INTERPRETATION.

2.-(1.) In this Chapter, unless the context otherwise mining areas. requires, the expression "land" includes mining areas. (2.) The provisions of this Chapter shall not restrict powers of court the jurisdiction and powers of the Supreme Court, possessing the jurisdiction and powers of the former Court of Chancery in England as to the partition of land, but shall be construed as enlarging the same. 1894, c. 19, s. 1 (part).

Joint tenants, co-parceners,

tenants in com

mon may be compelled to

have land par

titioned.

May bring an action for partition or sale.

Remainder man or reversioner

LAND SUBJECT TO PARTITION.

3. All persons holding land as joint tenants, co-parceners, or tenants in common, may be compelled to have such land partitioned, or to have the same sold and the proceeds of the sale distributed among the persons entitled, in the manner provided in this Chapter. R. S., c. 122, s. 1.

4. Any one or more of the persons so holding land may bring an action in the Supreme Court for a partition of the same, or for a sale thereof, and a distribution of the proceeds among the persons entitled. R. S., c. 122,

s. 2.

5. Such action may be maintained by any person who cannot maintain has an estate in possession, but not by one who is entitled only to any remainder or reversion. R. S., c. 122, s. 3.

an action.

Tenants for years may maintain action against tenants for years.

6. When two or more persons, hold jointly, or in common, as tenants for any term of years, any of them may bring such action against his co-tenants in the same manner as if they had all been tenants of the freehold.

But not against R. S., c. 122, s. 4 (part).

freeholders, un

less twenty years 7. No tenant for any term of years, unless twenty years at the least remain unexpired, shall maintain such

of term are unexpired.

an action against any tenant of the freehold. R. S., c. CHAP. 168. 122, s. 4 (part).

PARTIES AND SERVICE.

claim to show

8. (1.) The statement of claim shall set forth the Statement of rights and titles, so far as known to the plaintiff, of all interest of persons interested in the land who would be bound by the parties. partition, whether they have an estate of inheritance, or for life, or years, or whether it is an estate in possession, or in remainder, or reversion, and whether vested or contingent.

If plaintiff has

(2.) If the plaintiff holds an estate for life, or years, estate for life or the person entitled to the remainder or reversion, after his years, remainestate, shall be considered as one of the persons so interested interested. R. S., c. 122, s. 6 (part).

der man, &c., is

sons interested

persons may be

9. If there are any persons interested in the land If names of perwhose names are unknown to the plaintiff, the court, or are unknown, judge may if, having regard to the nature and extent of appointed to the interests of such persons, it appears expedient on represent. account of the difficulty of ascertaining such persons, or in order to save expense, appoint one or more persons to represent such persons whose names are unknown to the plaintiff, and the judgment or order of the court shall be binding on the persons so represented, subject to the provisions of this Chapter. R. S., c. 122, s. 8.

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appearance,

further notice,

10. If any person, entitled to notice, fails to appear, Where default of and if the service of the writ of summons, or other notice court may order to him, appears to the court, or the judge, to have been insufficient, the court, or a judge may order such further notice as is thought proper. R. S., c. 122, s. 9.

province and has

tunity to appear,

11. If, in any stage of the action, it appears to the If party out of court that any person interested, whether a party or not, not had opporis out of the province, and has not had an opportunity to adjournment appear in the action, it may be adjourned until sufficient may be made. time is allowed to enable him to appear. R. S., c. 122,

s. 10.

party on his ap

12. Any person who is not a party may be made a Person made a party by leave of the court, or a judge, on filing an plication. affidavit showing that he is entitled to a share in the land, and in all subsequent proceedings he shall be named as a party to the action. R. S., c. 122, s. 13 (part).

sane person.

13. The court, or a judge, may assign a guardian for Guardian appointed for the suit for any infant, or insane person who is interested Infant or inin the premises, in the same manner as a guardian is admitted for an infant plaintiff or defendant in any other action, and the judgment or order of the court shall be binding on the persons so represented, subject to the provisions of this Chapter. R. S., c. 122, s. 11.

7

CHAP. 168.

Statement of defence.

Pleading in

answer to an

added party.

Order for parti

tion to state per

their shares.

PLEADINGS

14. The defendant, in his statement of defence, may plead any matter tending to show that the plaintiff ought not to have partition, either in whole or in part. R. S., c. 122, s. 12 (part).

15. If any person was made a party by leave of the court or a judge, the plaintiff may, without leave, amend his statement of claim and plead, or he may reply that such person has no estate or interest in the land. R. S., c. 122, s. 13 (part).

ORDER FOR PARTITION.

16. If the defendant fails to appear, or to deliver a sons entitled and defence, or if, after a trial, it appears that partition should be made, the court, or a judge, shall make an order for the partition of the land, which shall specify the persons entitled to share in the partition ordered, and the share to which each is respectively entitled. R. S., c. 112, ss. 15 (part), 16.

Unless a sale

must be had, court to appoint three commissioners.

Oath of commissioners.

Notice to parties who appeared or

province to be

COMMISSIONERS AND THEIR DUTIES.

17. When such order passes, unless it appears to the court, or judge, that a sale of the land is necessary, under the provisions of this Chapter, the court, or judge, may appoint three disinterested persons as commissioners, to make partition and to set off to the parties their respective shares.

R. S., c. 122, s. 17.

18. The commissioners, before proceeding to the execution of their duties, shall be sworn before any justice of the peace faithfully and impartially to perform the same; a certificate of which oath shall be made on the order for partition by the person who administered it. R. S., c. 122, s. 19.

19. The commissioners shall give notice of the time are within the and place appointed for making the partition to all persons given by com- interested therein, who have appeared, or who are known and within the province, that they may be present if they see fit. R. S., c. 122, s. 20.

missioners.

Evidence may be

taken by com

parties may have

20.—(1.) The commissioners may take evidence, and if missioners and it is desired by any of the parties interested in the subpœnas. partition to produce witnesses before the commissioners, such party may obtain subpoenas from the prothonotary for such witnesses, and disobedience of any such subpoena shall be deemed a contempt of court.

Division among

(2.) The person served with a subpoena shall be entitled to be paid the same fees as for attendance at an ordinary trial.

21. (1.) The commissioners shall divide the land, and entitled. allot the several shares thereof to the respective parties

the persons

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