Page images
PDF
EPUB
[graphic]

$470. Terms of Sale.

In all cases of sales of property, the terms shall be made known at the time; and if the premises consist of distinct farms or lots, they shall be sold separately, or otherwise if the court so directs. [L. 1862; D. Cd. § 454; H. C. § 458.]

$ 471. Referee not to Purchase.

Neither of the referees, nor any person for the benefit of either of them, shall be interested in any purchase; nor shall the guardian of an infant party be interested in the purchase of any real property, being the subject of the suit, except for the benefit of the infant. All sales contrary to the provisions of this section shall be void. [L. 1862; D. Cd. § 455; H. C. § 459.] § 472. Report of Sale.

After completing the sale, the referees shall report the same to the court, with a description of the different parcels of land sold to each purchaser, the name of the purchaser, the price paid or secured, the terms and conditions of the sale, and the securities, if any, taken. The report shall be filed with the clerk. [L. 1862; D. Cd. § 456; H. C. § 460.]

$ 473. Exception to Report and Confirmation.

The report of sale may be excepted to by any party entitled to share of the proceeds in like manner and with like effect as in ordinary cases. If the sale be confirmed, the order of confirmation shall direct the referees to execute conveyances and take securities pursuant to such sale, which acts they are hereby authorized to do. Such order shall have the effect to discharge the property of the estate or interest of every person mentioned in section 444, and of tenants for life or years of the property sold, and shall be binding and conclusive upon all such persons as if the same were a decree for the partition of such property, and upon all persons whomsoever as to the regularity of the proceedings concerning such sale, except as provided in section 471. [L. 1862; D. Cd. § 457; H. C. § 461.]

§ 474. When Party Entitled to Share or Incumbrancer Buys.

When a party entitled to a share of the property, or an incumbrancer entitled to have his lien paid out of the sale, becomes a purchaser, the referees may take his receipt for so much of the proceeds of the sale as belongs to him. [L. 1862; D. Cd. § 458; H. C. § 462.]

$ 475. Proceeds of Sale to be Invested.

When there are proceeds of sale belonging to an unknown owner, or to a person without the state who has no legal representative within it, or when there are proceeds arising from the sale of an estate subject to the prior estate of a tenant for life or years, which are paid into court or otherwise deposited by order of the court, the same shall be invested in securities on interest for the benefit of the persons entitled thereto. [L. 1862; D. Cd. § 459; H. C. § 463.]

§ 476. In Whose Name Securities Taken or Investments Made.

When the security for the proceeds of sale is taken, or when an investment of any such proceeds is made, it shall be done, except as herein otherwise provided, in the name of the clerk of the court and his successors in office, who shall hold the same for the use and benefit of the parties interested, subject to the order of the court. [L. 1862; D. Cd. § 460; H. C. § 464.]

§ 477. Securities Taken by Referees, to whom Payable.

When security is taken by the referees on a sale, and the parties interested in such security, by an instrument in writing under their hands delivered to the referees, agree upon the shares and proportions to which they are respectively entitled, or when shares and proportions have been previously adjudged by the court, such securities shall be taken in the names of and payable to the parties respectively entitled thereto, and shall be delivered to such parties upon their receipt therefor. Such agreement and receipt shall be returned and filed with the clerk. [L. 1862; D. Cd. § 461; H. C. § 465.]

§ 478. Clerk to Keep Account of Securities and Investments.

The clerk in whose name a security is taken or by whom an investment is made, and his successors in office, shall receive the interest and principal as it becomes due, and apply and invest the same as the court may direct; and shall file in his office all securities taken, and keep an account in a book provided and kept for that purpose in the clerk's office, free for inspection by all persons, of investments and moneys received by him thereon, and the disposition thereof. [L. 1862; D. Cd. § 462; H. C. § 466.]

$479. When Equal Partition can not be Made.

When it appears that partition can not be made equal between the parties, according to their respective rights, without prejudice to the rights and interests of some of them, the court may adjudge compensation to be made. by one party to another, on account of the inequality of partition; but such compensation shall not be required to be made to others by owners unknown, nor by infants, unless in case of an infant it appear that he has personal property sufficient for that purpose, and that his interest will be promoted. thereby. [L. 1862; D. Cd. § 463; H. C. § 467.]

§ 480. When Proceeds Paid to Guardian of Infant.

When the share of an infant is sold, the proceeds of the sale may be paid by the referees making the sale, to his general guardian, or the special guardian appointed for him in the suit, upon giving the security required by law or directed by order of the court. [L. 1862; D. Cd. § 464; H. C. $468.]

$ 481. When Paid to Guardian of Insane Person.

The guardian who may be entitled to the custody and management of

the estate of an insane person, or other person adjudged incapable of conducting his own affairs, whose interest in real property shall have been sold, may receive, in behalf of such person, his share of the proceeds of such real property from the referees, on executing, with sufficient sureties, an undertaking, approved by the judge of the court, that he will faithfully discharge the trust reposed in him, and will render a true and just account to the person entitled, or to his legal representative. [L. 1862; D. Cd. § 465; H. C. § 469.] § 482. When Guardian May Consent to Partition.

The general guardian of an infant, and the guardian entitled to the custody and management of the estate of an insane person, or other person adjudged incapable of conducting his own affairs, who is interested in real estate held in common, or in any other manner, so as to authorize his being made a party to an action for the partition thereof, may consent to a partition without suit, and agree upon the share to be set off to such infant or other person entitled, and may execute a release in his behalf to the owners of the shares of the parts to which they may respectively be entitled, upon an order of the court. [L. 1862; D. Cd. § 466; H. C. § 470.]

§ 483. Costs, how Apportioned.

The costs of partition, including fees of referees and other disbursements, shall be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the decree. In that case, they shall be a lien on the several shares, and the decree may be enforced by execution against the parties separately. When, however, a litigation arises between some of the parties only, the court may require the expense of such litigation to be paid by the parties thereto, or any of them. [L. 1862; D. Cd. § 467; H. C. § 471.]

CHAPTER VII.

OF SUITS BY AND AGAINST EXECUTORS, ADMINISTRATORS, LEGATEES, HEIRS, OR DEVISEES.

§ 484. Chapter VI of Title V, Application to Suits

- What Causes Survive.

The provisions of chapter VI of title V of this code shall apply to suits by and against executors and administrators, except as in this chapter otherwise or specially provided. Sections 379, 380, and 381 of such chapter shall not so apply. All causes of suit by one person against another, however arising, survive to the personal representatives of the former and against the personal representatives of the latter. When the cause of suit survives, as herein provided, the executors or administrators may maintain a suit in equity thereon against the party against whom the cause of suit accrued, or after his death against his personal representatives. [L. 1862; D. Cd. § 468; H. C. § 472.]

SUIT AGAINST EXECUTOR.-In a foreclosure suit against the executor of the estate of a decedent mortgagor, it was held that the executor represents the estate of the decedent so far as the same vests in him for the creditors and heirs; but, as the

§ 485. Suits Against Next of Kin.

title descends to the heirs, the executor does not have the same estate in the land that the decedent had, and the heirs are necessary parties in the foreclosure suit: Renshaw v. Taylor, 7 Or. 315.

The next of kin of a deceased person are liable to a suit in equity by a creditor of the estate to recover the distributive shares received out of such estate, or to so much thereof as may be necessary to satisfy his debt. The suit may be against all of the next of kin jointly or against any one or more of them severally. [L. 1862; D. Cd. § 469; H. C. § 473.]

SUIT AGAINST NEXT OF KIN BY CREDITOR.-No suit is maintainable under this section when the claim of the creditor has been rejected by the administrator or

executor, and no action or suit is commenced thereon until after final settlement: Grange Union v. Burkhart, 8 Or. 51.

$ 486. Each Liable for Whole Amount Received.

In such suit, the plaintiff may recover the value of all the assets received by all the defendants in the suit if necessary to satisfy his debt; and the amount of the recovery shall be apportioned among the defendants, in proportion to the value of the assets received by each; and no allowance or deduction shall be made from such amount on account of there being other next of kin to whom assets have also been delivered. [L. 1862; D. Cd. § 470; H. C. § 474.]

§ 487. Suits for Contribution Between Next of Kin.

Any one of the next of kin against whom a recovery is had pursuant to section 486 may maintain a suit against all the other next of kin of the deceased person, to whom any such assets have been delivered jointly, or against any of them separately, for a just and equal contribution, and may recover of each defendant such amount as shall be in the same proportion to the whole sum collected of the plaintiff as the value of the assets delivered to such defendant bore to the value of all the assets delivered to all the next of kin of the deceased. [L. 1862; D. Cd. § 471; H. C. § 475.]

$488. Suits Against Legatees.

Legatees are liable to a suit in equity by a creditor of the testator to recover the value of any legacy received by them. The suit may be maintained against all the legatees jointly or against any one or more of them severally. In such suit the plaintiff shall not recover unless he shows,—

1. That no assets were delivered by the executor or administrator of the testator to his next of kin; or,

2. That the value of such assets has been recovered by some other creditor; or,

3. That such assets are not sufficient to satisfy the demand of the plaintiff.

And in the last case he shall recover only the deficiency. The whole

amount which the plaintiff shall recover shall be apportioned among all the legatees of the testator, in proportion to the value of their legacies respectively, and his proportion shall only be recovered of each legatee. [L. 1862; D. Cd. § 472 ; H. C. § 476.]

$489. Apportionment of Costs.

In a suit against several next of kin or legatees jointly, for assets delivered to them, if a recovery be had against such next of kin or legatees, the cost of such suit shall be apportioned among the several defendants, in proportion to the amount recovered against each of them. [L. 1862; D. Cd. § 473; H. C. § 477.]

[blocks in formation]

A decree against several next of kin or legatees shall be satisfied as to any one of them by the payment or satisfaction of the amount recovered against such defendant. [L. 1862; D. Cd. § 474; H. C. § 478.]

§ 491. Heirs and Devisees, Liability for Debts.

Heirs and devisees are liable to a suit by a creditor of a deceased person to recover the debt of their ancestor or testator to the extent of the value of any real property inherited by or devised to them. If such suit be against the heirs, all the heirs who are liable shall be made parties to the suit. [L. 1862; D. Cd. § 475; H. C. § 479.]

§ 492. Exceptions to Such Liability.

But the heirs are not liable for the debt, unless it appear that the personal assets of the deceased were insufficient to discharge it, or that after due proceedings the creditor has been unable to collect the debt from the personal representatives of the deceased, or from his next of kin or legatees. If the personal assets were sufficient to pay a part of the debt, or in case a part thereof shall have been collected, the heirs of such deceased person are liable for the residue. [L. 1862; D. Cd. § 476; H. C. § 480.]

§ 493. Section 492 not to Affect Liability, When.

Section 492 shall not affect the liability of heirs for a debt of their ancestor, where such debt was by his will expressly charged exclusively on the real property descended to such heirs, or where such debt is by the will expressly directed to be paid out of the real property descended before. resorting to the personal property. [L. 1862; D. Cd. § 477; H. C. § 481.]

$ 494. Preference of Debts.

In cases where the next of kin, legatees, heirs, and devisees are liable for the debts of their ancestors, as herein provided, they shall be liable therefor without other priority or preference than such ancestors would be. The word "debt," as used in this chapter, shall be construed to include all

« PreviousContinue »