The principal point relied on in this case for the defendant is, that after the issuing of the commission from the probate office for partition among the heirs, and before the return of the commissioners, the jurisdiction of the judge was ousted by the conveyance of one of the heirs, of his share in the inheritance; and the case of Pond & Al. vs. Pond & Al. was relied on to maintain this position. But in that case the conveyance was made before the proceedings were instituted; so that there was no jurisdiction at that time. In the present case there was jurisdiction when the process commenced; and it was not competent to any of the heirs to defeat a process, to the prejudice of the others, by parting with his interest. In such case the commission must pro ceed; and the purchaser will hold, by virtue of his conveyance, what shall be set off as belonging to his grantor.
Defendant defaulted