THIS was an appeal from the Circuit Court of the United States for the District of New Jersey, sitting as a court of equity.
The bill was filed by by Thomas and Horatio Kearney, and their sisters, Catherine, Anastasia, and Anne, who were the children of Edmund Kearney, deceased. The complainants were citizens of several States, viz.: Thomas and Catherine of Mississippi, Anne of Connecticut, Anastasia of Michigan, and Horatio of Ohio. The defendants were all citizens of New Jersey, and were as follows, viz.: John I. Taylor, Edward Taylor, Isaac K. Lippincott, Ezra Osborne, John Hopping, Daniel Holmes, and also the heirs of the following persons, viz.: of Leonard Walling, of John W. Holmes, of James Hopping, and of Joseph Taylor.
The bill was dismissed by the Circuit Court, and the complainants appealed.
On the 30th of December, 1822, Edward Kearney, then of the county of Monmouth, in the State of New Jersey, died intestate, seised in fee of a tract of land situated in that county, called Key Grove, containing 781 acres. The land bordered upon Rariton Bay, at the foot of Staten Island, for a mile or more, with water of sufficient depth for the near approach of vessels.
At the time of his death Kearney left the following children: James Kearney, born in December, 1801; Horatio N. Kearney, born in October, 1803; John Kearney, born in November, 1805; Mary Kearney, born in November, 1808; Thomas Kearney, born in September, 1810; Anastatia Kearney, born in October, 1813; Catherine Kearney, born in June, 1816; Anne E. Kearney, born in June, 1818.
In May, 1828, James Kearney sold all his interest in the land to Daniel Holmes and John W. Holmes.
A law of New Jersey, passed in 1820, (Revised Statutes of New Jersey of 1821, page 776 et seq.) directs that upon application made by the heirs of a person dying seised of lands, or by any person duly authorized in their behalf, or claiming under them, a division may be ordered; and the 19th section authorizes a sale when the land is so circumstanced that, in the opinion of the commissioners, partition cannot be made without great prejudice to the owners, and upon satisfactory proof of that fact being made to the court.
On the 15th day of April, 1829, Daniel Holmes, on behalf of himself and John W. Holmes, filed a petition for partition in the Orphans Court for the county of Monmouth, at the April term, 1829, against the heirs of Edmund Kearney, setting forth their purchase of the undivided one seventh part of the estate from James P. Kearney; that by reason of the minority of some of the tenants in common, no division could take place by agreement, and praying the court to order a division.
At the time of these proceedings, Joseph Taylor was the administrator upon the estate of Edmund Kearney and the guardian of all his infant children who resided in the State of New Jersey.
The court granted the petition, and appointed James Hopping, Edward Taylor, and Leonard Walling, commissioners.
The commissioners took the necessary oath to perform their duty faithfully, on the 2d of June, 1829.
On the 10th of July, 1829, the commissioners reported to the court that they had caused a survey and map of the premises to be made, and that in their judgment the said premises were so circumstanced that a division thereof could not be made without great prejudice to the interest of the owners.
At July term, 1829, the court passed an order that the commissioners should make the sale, at public auction, to the highest bidder, giving at least sixty days' notice of the time and place of such sale, by advertisements put up in five of the most public places in the county, and also in one public newspaper circulating in the same county.
In January, 1830, the commissioners reported that they had sold the land, as follows:
Lot No. one, containing 224 82/100 acres, to Isaac K.
Lippincott, at $30 per acre ..............$6,744.
Lot No. two, containing 56 42/100 acres, to Thomas
Carhart, for $28.25 per acre ....1,593.86 1/
Lot No. three, containing 32 85/100 acres, to Amos
Walling, for $26.75 per acre ......878.73 3/
Lot No. four, containing 18 43/100 acres, to Jonathan
Tilton, at $38.50 per acre ........709.55 1/
Lot No. five, containing 59 52/100 acres, to Ezra
Osborn, Esq., for $22.50 per acre ...1,339.
Lot No. six, containing 56 84/100 acres, to Ezra
Osborn, Esq., for $13.25 per acre .....753.
Lot No. seven, containing 48 46/100 acres, to Isaac
K. Lippincott, for $25.25 per acre .1,223.61 3/
Lot No. eight, containing 24 11/100 acres, to Richard
S. Burrowes, for $43 per acre .......1,036.
