¶1— By observing carefully the provisions of the statute relative to the partition of real estate, on petition for partition, and the acts to be performed at the different stages of the procedure, it is believed that no difficulties will be encountered, nor will any uncertainty as to the proper mode of reaching given results, arise. Section 11, and those immediately following, of c. 121, R. S., provide the manner in which the right of the petitioner to have partition, and the extent of that right, shall be tried and determined. After the rights of the parties are thus determined, the interlocutory judgment for partition is entered up, in conformity with such determination.
¶2Section 19, of the same chapter provides, that the Court, having entered the interlocutory judgment, shall appoint three or five disinterested persons, as commissioners, to make the partition, and to set off to the petitioners the share or shares belonging to them; which shall be expressed in the warrant.
¶3Thus it will be seen that the duties of the commissioners are plain. They are simply to make partition of the estate, assigning to the petitioners the share or shares belonging to them, as expressed in their warrant. They have no authority to try the question of title, or to determine what portion of the estate to be divided belongs to either party. The whole question of right is determined before their appoint*219ment, and the interlocutory judgment is tbe evidence of the rights of the parties.
¶4The commissioners in this case, having erroneously undertaken to determino a question of right to a portion of the estate to be divided, therein exceeded their authority, and their report was properly recommitted for the correction of that error.
¶5The question whether Rufus Ham is entitled to better-ments made by him on that part of the common estate which he claims to have occupied in severalty, cannot be legitimately raised at this stage of the proceedings. All questions touching the extent of his right in the common property should have been settled before the interlocutory judgment was entered, and the Court has no power to frame an issue of fact for the determination of a jury, by which the rights of the parties can be affected while that judgment remains in force.
¶6Nor does the Act of March 16, 1855, make any change in the law in this respect. Under that Act, the rights of the parties in the common property, must be determined before the interlocutory judgment is entered. The commissioners are not authorized to try and determine the questions whether there has been a sale and exclusive possession and occupation of a part of the lands or real estate to be divided by any one or more of the tenants in common, by mutual consent ; nor whether improvements had been made by buildings or otherwise, by such tenant or tenants, on the parts so occupied by them, exclusively; otherwise most important controversies concerning property might be settled without giving the parties thereto the right to a trial by jury, in derogation of an important constitutional guaranty. Such, we apprehend, could not have been the intention of the Legislature.
¶7We have not considered the question whether exceptions would properly lie in this case, such having been the desire of both parties. Exceptions overruled.