When the question arises on a bill for a partition, as to the undivided rights and interests of the parties, the usual course is to direct a reference to a , Master to inquire and report. The court must first ascertain the estate and interest of the parties respectively, before the commission to make partition can be awarded. This course was followed in Agar v. Fairfax, (17 Vesey, 533.) But this is a peculiar case, and that course cannot *305well and safely be pursued. The plaintiff’s right to an undivided moiety of the lot is admitted, and all the defendants are consenting to a partition, so far as respects the division of the lot into equal moieties. The dispute is between the defendants, as to their title and interest to the other moiety. Six of the defendants are in possession, claiming and enjoying separate portions of that moiety, and they set up a freehold estate in the same. The remaining defendants who are not in possession, claim the whole of that moiety, by a present vested interest in fee. It is not proper that such a controversy should be tried by a reference. It is a question of legal title, and should be settled at law. In Wilkin v. Wilkin, (1 Johns. Ch. Rep. 111.) it was understood, that if the title was doubtful, or disputed, it must be first established at law, before partition was to be made; and in that case the question was referred to a court of law. Partition is matter of right, where the title is clear; but not otherwise. If the title be suspicious, a court of equity as the Vice Chancellor observed, in Baring v. Nash, (1 Vesey and Beames, 557.) may well pause 'in directing partition. The reference seems to apply, not to the case where the title is litigated, but to cases of doubt and difficulty, as to the extent of the undivided interest of the respective claimants.
It appears to me, therefore, that in this case, the partition ought to be confined to the right of the plaintiff, and to that of the defendants, considered aggregately; and that as to the conflicting claims between the defendants, they ought to be settled at law before any further partition be made. The costs of the partition must, in such case, in the first instance, fall upon the plaintiff, tor until the rights and interests of the defendants are ascertained, they cannot justly be called upon to contribute. The English rule as to costs on partition, seems now to be, (17 Vesey, 558.) that no costs are given until the commission; and that the costs of issuing, executing, and confirming the *306commission, are borne by the parties, in proportion to the value of their respective interests, and that there .should be no costs of ■ the subsequent proceedings. But the; practice-in this court is, to charge the costs of the suit upon the parties respectively, in proportion to the value of their respective rights; and this rule is adopted by analogy from the statute, which gives the like costs on the proceeding in partition in. the courts of law.
Coats on partition. Decree.A decree.was accordingly entered, declaring that, “it appearing, by the admission of all the. defendants, that the plaintiff is entitled in-his own right, in fee,-to one equal undivided moiety of lot No. 2. in the 2d allotment .of Oriskany patent, and that he has. been in possession of the westerly half of the said lot since .1803, and has made valuable improvements thereon; and it further appearing,- that the other equal undivided moiety of the said lot is- claimed by the . several defendants,- who set up a title to unequal interests, and advance. conflicting claims, inasmuch as the defendants, Mary Orem and Henry Green, claim a present interest in fee to the whole of the said moiety, intrust, &c. and inasmuch as the six defendants last mentioned .-in the bill, claim, to .have freehold estates, or other interests, in and to the.said undivided moiety; and it further appearing, that the six defendants aforesaid are in possession in pursuance of their, claim, of this easterly half of the said, lot, and have made valuable improvements thereon, and that, as between, each otherwhere, .are no conflicting claims either as to title or possession; and inasmuch as all the defendants consent to, a just and equitable partition, quantity and quality relatively considered, exclusive of improvements, and the eleven defendants first named in the bill expressly consent that the westerly half of.thelotbe allotted to the plaintiff, according to a just partition as aforesaid: Ordered, fyc. that partition of the lot be -made into two equal moieties, by metes and hounds, qualify and quantity relatively considered, ex-*307elusive of improvements, and that one moiety be assigned to the plaintiff; and if it can be done consistently with a just and equal partition as aforesaid, that the lot be so divided as that one moiety shall include the improvements and possession of the plaintiff, and that such • moiety be assigned to the plaintiff. Ordered, also, that a commission issue, &c. and that the moiety allotted to the plaintiff be held and enjoyed by him in severalty, and that when the conflicting claims of the defendants shall have been settled at law, they be at liberty to apply to this court, on the foot of - this decree, to have further partition of the other moiety of the lot, according as their legal rights shall appear; and that the question as to what proportion or part of the costs ought to be borne by the defendants or either of them, be reserved until such applicattion; and that, in the,mean time, the plaintiff pay his own costs of this suit, and the costs of executing the said commission.