Schermerhorn and Clute against Miller and wife

Schermerhorn and Clute against Miller and wife. Bight of tentesybySitíate sold on execntion. By the seisin of the wife in fee, of one undivided certain'preniises, and. the alive,°tiie husband became curtesy ^initi?f?: t.llen hia sold to' B. G. on execution : then the whole premises were sold to R G. under the statute of partition. On application by R. G. before the expiration of fifteen months from the first sale, the court ordered one-third of the proceeds of the sale to be put at interest by the clerk, to be disposed of by the court, at the expiration of the fifteen months, according to the rights of the parties at that ,ime. In partition. Schermerhorn and Clute, and Maria the wife of Miller, were seised in fee as tenants in common in equal shares of a house and lot in the city of Schenectady. Miller had issue by his wife, born alive. Proceedings were then commenced in partition, and this Court ordered a sale of , . , . . . the premises by the commissioners, pursuant to the act, (1 R. L. 510, s. 5,) and on the 25th day of December, 1823, the premises were sold to Resolved Given, for $344 50. Before this, on the 26th July, 1823, Given had purchased all the interest of Miller, at a Sheriff's, sale upon execution, and taken a certificate as required by statute, (sess. 43, ch. 184, s. 1.) And now, (on proof, by affidavit, that notice of the motion had been given to Miller,) A. C. Paige, moved for a rule, .that the commissioners pay one-third of the $344 50 to the Clerk, to be put at interest during the life of Miller, for the benefit of Given, the purchaser. [MAJORITY — Curia.] Curia. This application is warranted by the 14th section for the act for the partition of lands. (1 R. L. 513.) By the iparriage and birth of the chile}, Miller became tepant by the curtesy initiate ; and by the sale upon the execution, Given succeeded to his rights, and would he entitled, under the statute of partition, to the interest during Miller’s life; hut the period for redernp.tion has no) expired, gnd we cannot grant the rule as applied for. Let one-third of the proceeds of the sale by the cp.rnniissip.ners be paid to the Clerk and he put at interest, which we will dispose of, on further application, when the period for redemption has expired, according to the rights of the parties at that time. Rule accordingly.