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to the defendant, the costs which may be adjudged against the plaintiff.

The last three sections contain the substance of the provisions for the same purpose, in sec. 8 and 9, of chapter 234, session laws, 1841, with some definite provisions to regulate them, and prevent abuse.

CHAPTER IV.

ACTIONS FOR THE PARTITION OF REAL PROPERTY.

SECTION 920. Action for partition of real property allowed. 921. To whom summons is addressed.

922. Contents of complaint.

923. Creditors having general liens may be parties.
924. Liens on undivided shares.

925. Unknown owners made parties.

926. Rights of parties may be put in issue.

927. Order may allow sale or partition.

928. Manner of making partition.

929. Referees to make report.

930. Effect of confirmation of report.

931. Tenants in dower, &c., not affected.

932. Expenses of referees and surveyor.

933. Sale, when allowed.

934. When part only is sold, life estate.

935. Before sale, creditors having specific liens.

936. Certificate as to general liens.

937, 938. Court may order reference as to liens.

939. Notice to creditors to make proof.

940. Referee to report priority.

941. Creditor may have report corrected.

942. Proceeds of sale, how applied.

943. Sale not to be delayed by reference.

944. Referees may deliver securities to parties.

945. Manner of litigating as to claims.

946. Sales to be at auction.

947. Terms of sale to be ordered.

948. Separate securities allowed.

949. Estate for life, how disposed of.

950. What passes by sale.

951. Sum in gross allowed for dower, &c.

952. Investment, if no consent given.

953. Proportion of proceeds ascertained.

954. Unknown tenants in dower, &c.

955. Investment for inchoate right of dower.

956. Dower, how released.

957. Terms of sale to be published.

SECTION 958.

Who may not purchase.
959. Referees to report sale.
960. Report, when confirmed.
961. Receipt of incumbrancers.
962. Deeds to be recorded.
963. Effect of conveyances.
964. Proceeds, when invested.

965. Investment, how made.

966. Securities in name of parties or clerk.

967. Clerk to collect interest.

968. Partition made equal by compensation.
969. Infants share on sale to guardian.

970. Insane persons share.

971. Consent to partition by guardian.
972. State may be party.

973. Cost of partition allowed.

This proceeding is one of those which has existed heretofore, separate from the ordinary forms of actions, by special statutory provisions in detail, providing for its prosecution in both courts of law and equity.

The nature of the remedy is so unlike those sought in ordinary actions, as to require many distinct provisions, differing from the general course of procedure.

We have endeavored to unite all that was valuable in the old law and equity modes of practice, and to make the procedure conform as far as the nature of the remedy admits, to the procedure in ordinary actions. There are such a variety of interests and contingencies to be guarded and provided for, that the provisions necessarily occupy a considerable space though condensed into nearly half the volume, they have heretofore occupied in the revised statutes. Among other improvements in the system heretofore in use, is that by which, in case of a sale of property, the proceeds, whether money or securities, may, in certain cases, be paid or delivered directly to the parties interested, without the tedious and expensive ceremony of being first paid into court, and afterwards taken out on a formal application.

See 2 R. S., 316–332.

§ 920. When several persons hold, and are in possession of real property, as joint tenants, or as tenants in common, in which one or more of them have an estate of inheritance, or for life or years, an action may be

brought by one or more of such persons, for a partition thereof, according to the respective rights of the persons interested therein, and for a sale of such property, or a part of it, if it appear that a partition cannot be made, without great prejudice to the owners.

§ 921. The summons must be addressed by name to all the joint tenants, and tenants in common, who are known, and generally to all persons unknown, having or claiming an interest in the property.

§ 922. The interests of all persons in the property, whether such persons be known or unknown, must be set forth in the complaint specifically and particularly, as far as known to the plaintiff, and if any one or more of the parties, or the share or quantity of interest of any of the parties, be unknown to the plaintiff, or be uncertain or contingent, or the ownership of the inheritance depend upon executory devise, or the remainder be a contingent remainder, so that such parties can not be named, that fact must be set forth in the complaint.

§ 923. The plaintiff may at his option, make creditors, having a specific or general lien upon the property, or upon any particular portion thereof, parties to the iction.

§ 924. When the lien is on an undivided interest or estate of any of the parties, such lien, if a partition be made, is thenceforth a charge only on the share assigned to such party; but such share must be first charged

with its just proportion of the costs of the partition, in preference to such lien.

§ 925. If a party having a share or interest be unknown, or either of the known parties reside out of the state or cannot be found therein, and such fact be made to appear by affidavit, the summons may be served on such absent or unknown party, by publication, directed by the court or judge, in the manner prescribed by sections 629 and 630. When publication is made, the summons, as published, must be accompanied by a brief description of the property, which is the subject of the action.

§ 926. The rights of the several parties, plaintiffs as well as defendants, may be put in issue, tried and determined by such action; and where a defendant fails to answer, or where a sale of the premises is necessary, the title must be ascertained by proof to the satisfaction of the court, before the judgment for partition or sale is given.

§ 927. If it be alleged in the complaint, and established by evidence, to the satisfaction of the court, that the property or any part of it, is so situated that partition cannot be made, without great prejudice to the owners, the court may order a sale thereof, and for that purpose may appoint one or more referees. Otherwise, upon the requisite proofs being made, it must order a partition, according to the respective rights of the parties, as as

certained by the court, and appoint three referees therefor; and must designate the portion to remain undivided, for the owners, whose interests remain unknown or not ascertained.

§ 928. In making the partition, referees must divide the the property, and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties, as determined by the court, designating the several portions by proper landmarks, and may employ a surveyor, with the necessary assistants, to aid them therein.

§ 929. The referees must make report of their proceedings, specifying therein the manner of excuting their trust, describing the property divided, and the shares allotted to each party, with a particular description of each share.

§ 930. The court may confirm or set aside the report, and if necessary, appoint new referees. Upon the report being confirmed, judgment must be rendered, that such partition be effectual forever, which judgment is binding and conclusive:

1. On all the parties named therein, and their legal representatives, who have at the time any interest in the property divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder or inheritance of such property, after the termination of a

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