#### *Allen Lancaster and others*vs. *William Seay and others.*

Bill for partition. At the hearing it appeared that the suit was defective — all parties not being before the Court. The Circuit Chancellor refused to give plaintiff leave to amend, and dismissed the bill without prejudice : — On appeal, his decision was sustained.

When at the hearing it appears that the suit is defective from the default of the plaintiff, it is a matter of discretion whether leave shall be given him to supply the defect.

*Before*Dunkin, Ch. *at Spartanburg,*June, 1853.

This case will be sufficiently understood from the Circuit decree, which is as follows:

Dunkin, Ch. Jorial Barnett died intestate about forty years ago, leaving, as the plaintiffs allege, a handsome estate, real and personal, and leaving also a widow and eleven children. The bill was filed on the 24th February, ’53, by two of the children of the intestate, against two other of his children and their hus. bands, who are in possession of a tract of land containing two hundred and ten acres. It is alleged that of this tract no partition was made, and that all the other children reside beyond the limits of the State. Partition of this tract is sought. Defendants allege that at the death of their father they were minors about thirteen or fourteen years of age; that he left other real estate; that their mother, the widow of the intestate, was for the last forty years in undisturbed possession of this tract, claiming it as her own; and when she died, about a year since, it passed under'her last will and testament to her daughters, these defendants. The defendants insist, however, that the distributees. of Jorial Barnett are not as stated in the bill, that he left no son named Jorial, and that he did leave a son named Joseph, who died long since, leaving a large family, who are not parties, and that two of the alleged daughters against whom judgment *pro confesso*has been taken, have been long since dead, leaving families, who are not parties.

Defendants allege that the tract is of little value, and that *112the proceeding is vexatious. They pray that they may have the advantage of the want of proper parties, and that the bill may be dismissed.

Whatever rights the plaintiffs now have, it is perfectly clear from the pleadings, that they possessed the same rights about forty years ago. During all that time the premises were in pos-sesion of the party under whom the defendants claim. In *Rid-dlehoover*vs. *Kinard,*1 Hill, Ch. 378, it was held that half that lapse of time was sufficient to raise the presumption of a grant from the State, or “ of almost anything else that is necessary to quiet the title of property.” In that case an administration was presumed, and that the defendant had acquired a title from the administrator. So in *Hutchison*vs. Noland, 1 Hill, 222, the Court say we will presume whatever is necessary to give efficacy to long possession. Among these may very well be included the partition of an estate, or *ouster*by a tenant in common, or the like. The intestate, Jorial Barnett, left other real estate besides a handsome personal estate, according to the bill, and it is not suggested that partition remains to be made of anything but this tract. The widow was entitled by law to one-third of the estate. None of the other heirs have interposed any claim except the complainants, who can be entitled in any view only to two-elevenths of two-thirds of the premises. But it is not proposed definitely to adjudicate the rights of the parties. The plaintiffs admit the infirmity in the pleadings and that they are unable to proceed without making new parties. In *Biederman*vs. *Seymour,*17 Eng. C. R. 594, (a) it is well remarked by Lord Langdale, that *“*it is the duty of á plaintiff to come fully prepared to ask the Court for a decree ; and if he is not so prepared, and it appears that the suit is defective from his default, it is an indulgence to give the plaintiff leave to supply that defect afterwards, and it becomes the duty of the Court to consider whether for promoting the ends of justice leave should be given or not.”

Under all the circumstances of this case, the only proper *113alternative presented is to protract the litigation by giving leave to the plaintiffs to make other parties upon payment of all the costs up to this time, including the costs also of the amendment, as in *Jennings*vs. *Springs,*Bail. Eq. 181, or by dismissing the bill without prejudice, so that the plaintiffs, if so advised, may bring a new suit so as to make all proper persons parties thereto; and their right to do so will not be affected by this decree. See *Miller*vs. *McLase, 7*Paige, 452.

It is ordered and decreed that the bill be dismissed with costs, but without prejudice.

The complainants appealed, and now moved this Court to reverse the circuit decree, on the grounds:

1. Because the only acknowledged error in the bill is a mistake in the Christian name of one of the parties, which may have been amended without dismissing the bill.

2. Because the complainants had a right to partition, .whether the lands belonged to the estate of Agnes Barnett or her husband.

3. Because the Chancellor should have given the complainants leave to amend, at most by paying the costs of the term, and to decree otherwise was contrary to Equity and the ordinary. practice of the Court.

*Bobo,*for appellants.

*Dean,*contra.

(a)

**1 Beav. 594.

*Per Curiam.*

The second ground of appeal insists that the plaintiff was entitled to a division of the property, whether considered as the estate of his father or as that of his mother. This is very extraordinary. The bill does not even mention the mother, or suggest that she survived the father, or if she did, that she is dead, or left any estate. It simply states the death of the father, describing the estate he left, and enumerates his children, saying that they are his heirs.

The other grounds of appeal relate to matters purely of discretion ; and not seeing that the Chancellor erred in the exer. *114cise of that discretion, it is ordered that the decree be affirmed ' and the appeal dismissed.

Johnston, Dunkin, Dargan and Wardlaw, CC., concurring.

*Appeal dismissed.*