The parties to this action for the partition of land are the heirs at law of William L. Hobart, deceased, who died intestate; and they take title to the lands in question, by descent, as such heirs.
The complaint alleges that each of the nine parties, plaintiffs and defendants, is seised in fee simple of, and *309entitled to, one equal undivided ninth part of said premises. The judge, at special term, before whom this_action was tried, without a jury, finds as matter of fact, and holds as a conclusion of law, that eight out of the nine parties and heirs, as aforesaid, had been advanced by the intestate, in various amounts, each of which differs materially from the others. And yet he holds and decides as a conclusion of law, and adjudges, “that the parts and shares” of said premises “belonging to the plaintiffs and other parties to the action, are correctly stated and set forth in the complaint;” and “that the plaintiffs are entitled to judgment for partition and division of said lands and premises between them, as demanded in said complaint.” Which is, that partition may be made according to the rights and interests of the several parties, as before alleged. The judgment or decree follows the conclusion of law in this respect, and adjudges and decrees, that “ each of said plaintiffs and defendants is entitled to the equal undivided one ninth part of the said lands and premises.” No notice whatever is taken of these advancements, in the decree, or in the conclusions of law, adjudging the rights'of the respective parties, but each is decreed, and adjudged, to be entitled the same as though no advancement had been made. This is manifest error; and the exceptions to the findings and conclusions of law in this regard are well taken. Bach of the parties, as has been seen, had been advanced by the intestate, except one, who had not been advanced at all; and those who had been advanced had been advanced in unequal amounts. The statute (1 B. 8. 754, § 23) provides that the value of all advancements, so made, shall be reckoned as part of the real and personal estate of the intestate; and if any advancement shall be equal or superior to the amount or share which the child so advanced would be entitled to receive of the real and personal estate of the deceased, then such child and his descendants shall be excluded *310from any share of the real and personal estate of the deceasedj By section 24 of said statute, it is provided that in case the advancement is less than such share, then the child so advanced, shall be entitled to receive so much only of the personal estate, “ and to inherit so much only of the real estate of the intestate as shall be sufficient to make all the shares of the children in such real and personal estate, and advancements, to be equal, as near as can be estimated.” It is quite probable, in view of all the facts presented, that some of the parties to the action have no share or interest whatever in the lands in question; and it is quite certain that the shares of such as do inherit are altogether unequal in proportion, as their advancements all differ in amount. The party who has not been advanced at all, has inherited much the largest share, and possibly the whole. This depends upon the value of the premises, as compared with each of the several advancements. It is suggested in behalf the respondents, that inasmuch as the lands have been ordered to be sold, and the proceeds of the sale, over and above costs and expenses, brought into court, the rights of all the parties may be adjusted properly in the distribution of the proceeds. Hot so. The proceeds can only be distributed according to the respective rights of the parties as adjudged and determined by the decree or judgment. Each party will necessarily have the same interest in the proceeds of the sale that he had in the land sold. The difficulty is, that the rights and interests of the several parties have been adjudged and decreed to be altogether different from those to which they are entitled by law; and I can see no way by which this error can be remedied, but by a reversal of the judgment and the ordering of a new trial.
The plaintiffs should have demurred to the third answer, instead of taking issue upon the facts and allegations therein contained, by replication. I incline to the opinion, however, that the court' properly refused to hear the evi*311dence offered by the defendant in support of that answer, as wholly irrelevant, and foreign to the matter pertaining to the right of action alleged in the complaint. But however this might be, the error, if any, of the ruling, was waived and abandoned when the defendants used those conveyances to establish their defense of advancements made to the several grantees, by them. In doing this they necessarily affirmed the validity of the conveyances, and cannot be heard to complain that they were not allowed to contest their validity.
[Fourth Department, General Term, at Oswego, October 3, 1870.We are also of the opinion that the order confirming the report of the sale, the appeal from which was heard in connection with the appeal from the judgment, should be reversed, and the sale set aside and vacated. It was clearly contrary to the decree. By the decree the referee was required to pay and discharge, out of the proceeds of the sale, all taxes, charges and assessments which might be a lien on the premises. Instead of this, he sold subject to such liens. The object of this provision, in all decrees of this kind, is to insure the purchaser a perfect title, and give assurance to bidders at the sale that all such claims are to be extinguished from the moneys paid by them upon their bids. The sale, as made, was calculated to alarm bidders, and to induce them to bid so as to leave an ample margin to meet the contingencies of the existence of such claims to an unknown and considerable amount. And it appears to have • had that effect. As the judgment is reversed, of course no new sale can be ordered.
The judgment is therefore reversed, and a new trial ordered, with costs to abide the event; and the order confirming the report of sale is reversed, and the sale set aside and held for nought, with $10 costs of appeal, to abide the event of the action.
Mullin, P. J., and Johnson and Talcott, Justices.]