The fact, that some of the shares are wholly delinquent in regard to payment of costs, is admitted. A question is made, whether, as no costs were taxed the last term, any are properly recoverable. We entertain no doubt, that the taxation of costs, in a case like the present, may be made after the court adjourns, as well as in any other cases.
A question is also made, whether any costs are properly taxable, except for commissioners’ fees. We think, that all costs, which ac*194crued in consequence of the trial of any of the facts alleged in the original petition, to which the petitionees interposed a plea of denial and upon which the petitioner prevailed, are properly taxable, in the discretion of the court, in favor of the petitioner. Such seems to be the express provision, both of the Revised Statutes and of the former statute. But in practice costs in regard to the trial have only been taxed, when the title to the land, in some way, came in dispute between the parties.
A question has also been made in regard to the right of this court to order sale of the land for the payment of costs. The' statute is express upon the subject, that a sale may be ordered by the court. This primarily, no doubt, had reference to the county court, — which have the original jurisdiction in matters of this kind. But this court having determined, that any question of law, arising upon the trial in reference to the title, may be placed upon the record by bill of exceptions and brought into this court for revision, it must follow, that the entire case comes here and is here to be finished, unless an-another jury trial becomes necessary. This court should then, no doubt, make all necessary orders towards carrying the judgment into effect, and this among them.
The only remaining inquiry is in regard to the appropriate mode of carrying out such a proceeding. It is obvious, we think, that such an order could not be made at the same term final judgment is rendered; for the very nature of the proceeding pre-supposes some antecedent delinquency, which could not be ascertained until after the order of payment was made. This is done, in contemplation of law, if not in fact, at the time final judgment is rendered. The cause should then, we think, regularly, have been entered continued; and if the payment of the costs were not made according to the order of the court, which should regularly be drawn up in form, the petitioner might then, in due course, make his motion for an order of sale, at the next term. But when the case is not entered continued, it requires, as in the present case, a formal petition, stating the grounds of the application, and to be duly served upon the adverse party. We see no good reason, why the party is not now entitled to an order of sale, against the delinquents.
The clerk will enter the suit “ continued,” upon the docket of last term, and bring it forward, as one of the entries of this term, *195and enter, as of this term, that, “ It being shown to this court, that the several petitionees have neglected and refused to pay their several proportions of the cost allowed the petitioner on the trial of the right and title of the several parties in the cause to the estate partitioned, and the fees of the commissioners, it is ordered, that the commissioners do sell at public auction, according to the provisions of the statute, so much of the land belonging to each share, as will be sufficient to pay the share of costs belonging to such share to pay.”