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NEW YORK STATE
REAL PROPERTY ACTIONS AND PROCEEDINGS LAW
(RPAPL)
ARTICLE 9
ACTION FOR PARTITION
Section 901. By whom maintainable.
903. Necessary defendants.
904. Permissible defendants.
905. Complaint.
907. Trial of title or interest.
911. Ascertainment of rights of parties
before interlocutory judgment on default or
admission or where party is an infant,
absentee or unknown defendant.
913. Inquiry as to creditors.
915. Interlocutory judgment.
916. Interlocutory judgment directing partial
partition.
917. Interlocutory judgment directing
partition in common.
918. Interlocutory judgment directing sale or
exception of lien or dower interest.
919. Interlocutory judgment directing credit
on sale.
921. Actual partition.
922. Meeting of commissioners; report of
actual partition; confirming or setting aside
report.
923. Security for credit on sale.
925. Report of sale; confirmation.
927. Contents of judgment after actual partition.
928. Effect of judgment after actual partition.
929. Lien of creditor upon share partitioned.
931. Contents of judgment after sale.
933. Effect of judgment after sale.
941. Judgment as to parties having interest
in entire property.
943. Judgment directing compensation to
equalize partition.
945. Judgment adjusting rents and profits.
947. Judgment affecting state tax claim.
951. Recording of judgment.
961. Disposition of proceeds of sale.
962. Payment of proceeds into court where
there are liens.
963. Payment of proceeds out of court where
there are liens.
964. Payment of proceeds into court in cases
involving decedent's property.
965. Payment of proceeds out of court in
cases involving decedent's property.
966. Payment of proceeds directly to parties
in cases involving decedent's property.
967. Payment of proceeds to owner of
particular or future estate.
968. Manner of payment of proceeds to owner
of particular or future estate.
969. Shares of infant, incompetent or conservatee.
970. Shares of unknown or absent owner.
971. Security for refund.
973. Report of disposition of proceeds.
981. Costs and expenses.
991. Proceeding for share of unknown heirs;
presumption of death; service.
992. Judgment in proceeding for share of
unknown heirs.
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Sec. 901. BY WHOM MAINTAINABLE.
1. A person holding and in possession of real property as joint
tenant or tenant in common, in which he has an estate of
inheritance, or for life, or for years, may maintain an
action for the partition of the property, and for a sale if
it appears that a partition cannot be made without great
prejudice to the owners.
2. A person holding a future estate as defined in sections
forty, forty-a or forty-b of the real property law or a
reversion as joint tenant or tenant in common may maintain
an action for the partition of the real property to which it
attaches, according to his respective share, subject to the
interest of the person holding the particular estate, but no
sale of the premises in such an action shall be made except
with the consent in writing, to be acknowledged or proved
and certified in like manner as a deed to be recorded, of
the person owning and holding such particular estate. If
partition or sale cannot be made without great prejudice to
the owners, the complaint shall be dismissed; dismissal
shall not affect the right of any party to bring a new
action after the determination of such particular estate.
3. A person entitled as a joint tenant or a tenant in common by
reason of his being an heir of a person who died holding and
in possession of real property, may maintain an action for
partition, whether he is in or out of possession,
notwithstanding an apparent devise to another by the
decedent, and possession under such a devise. The plaintiff
shall establish that the apparent devise is void.
4. In the event the estate of a decedent is the owner of an
estate in common in real property, the executor or
administrator may bring a partition action or intervene in a
pending partition action on behalf of the estate if, upon
application duly made, the surrogate approves.
Sec. 903. NECESSARY DEFENDANTS.
Each of the following persons shall be made a party to the
action:
1. Every person having an undivided share, in possession or
otherwise, in the property, as tenant in fee, for life, by
the curtesy or for years;
2. Every person entitled to the reversion, remainder or
inheritance of an undivided share, after the determination
of a particular estate therein;
3. Every person who, by any contingency, is or may become
entitled to a beneficial interest in an undivided share in
the property, provided that where a future estate or
interest is limited in any contingency to the persons who
shall compose a certain class upon the happening of a future
event, it shall be sufficient to make parties to the action
the persons who would have been entitled to such estate or
interest if such event had happened immediately before the
commencement of the action;
4. Every person having an inchoate right of dower in an
undivided share in the property;
5. Every person having a right of dower in the property, or any
part thereof, which has not been admeasured; and
6. An executor or administrator, where letters testamentary or
of administration have been issued on the estate of the
decedent from whom the plaintiff's title to the real
property is derived, and the action is brought within
eighteen months after such letters were issued; or where the
person of whose estate the executor or administrator has
been appointed should, if living, be a party to the action.
If no executor or administrator has been appointed for the
estate of such a person, that fact must be stated in the
complaint.
Sec. 904. PERMISSIBLE DEFENDANTS.
The plaintiff, at his election, may make defendant in the action:
1. A tenant by the curtesy or for life or for years, of the
entire property, or whoever may be entitled to a contingent
or vested remainder or reversion in the entire property, or
a person having a lien or interest which attaches to the
entire property. A person specified in this subdivision who
is not made a party is not affected by the judgment in the
action.
2. A person having a lien on an undivided share or interest in
the property. The nature of the lien and the share or
interest to which it attaches shall be specified.
3. An unknown person entitled to an estate or interest in the
property sold. The court shall provide for the protection of
his rights, as far as may be, as if he were known and had
appeared.
4. The state.
Sec. 905. COMPLAINT.
The complaint shall describe the property with reasonable
certainty, specify the rights, shares and interests therein of
each of the parties, as far as the same are known to the
plaintiff, and contain any other allegation required by statute.
If a party, or the share, right or interest of a party, be
unknown to the plaintiff; or if a share, right or interest be
uncertain or contingent; or if the ownership of the inheritance
depend upon an executory devise; or if a remainder be contingent,
so that the party cannot be named; such facts shall be stated in
the complaint. The complaint shall state whether the parties own
any other lands in common.
Sec. 907. TRIAL OF TITLE OR INTEREST.
1. The title or interest of any party in the property may be
put in issue. When any defendant, not a tenant in common or
joint tenant with plaintiff, puts in issue title or
interest, all subsequent proceedings as to such defendant,
including the trial, judgment and execution, shall be the
same as if it were an action to recover real property.
2. An issue of fact joined in the action is triable by a jury.
Sec. 911. ASCERTAINMENT OF RIGHTS OF PARTIES BEFORE INTERLOCUTORY
JUDGMENT ON DEFAULT OR ADMISSION OR WHERE PARTY IS AN
INFANT, ABSENTEE OR UNKNOWN DEFENDANT.
If a defendant has made default in appearing or pleading, or the
rights of the parties are not controverted, or a party be an
infant, absentee or unknown, the court shall ascertain the
rights, shares and interests of the several parties in the
property, by a reference or otherwise, before interlocutory
judgment is rendered.
Sec. 913. INQUIRY AS TO CREDITORS.
1. Before an interlocutory judgment for the sale of real
property is rendered the court shall ascertain, by reference
or otherwise, whether there is any creditor not a party who
has a lien on the undivided share or interest of any party.
A search certified by the clerk or by the clerk and register
of the county where the property is situated that there is
no such outstanding lien is sufficient proof of the absence
of such creditor.
2. Where a reference is directed, the referee shall cause a
notice to be published once in each week for four successive
weeks in such newspaper published in the county wherein the
place of trial is designated as shall be designated by the
court directing said reference, and also, where the court so
directs, in a newspaper published in each county wherein the
property is situated, requiring each person not a party to
the action who, at the date of the order, had a lien upon
any undivided share or interest in the property, to appear
before the referee at a specified place and on or before a
specified day to prove his lien and the true amount due or
to become due to him by reason thereof. The referee shall
report to the court with all convenient speed the name of
each creditor whose lien is satisfactorily proved before
him, the nature and extent of the lien, the date thereof and
the amount due or to become due thereupon.
Sec. 915. INTERLOCUTORY JUDGMENT.
The interlocutory judgment shall determine the right, share or
interest of each party in the property, as far as the same has
been ascertained. Where the property or any part thereof is so
circumstanced that a partition thereof cannot be made without
great prejudice to the owners, the interlocutory judgment, except
as otherwise expressly prescribed in this article, shall direct
that the property or the part so circumstanced be sold at public
auction. Otherwise, an interlocutory judgment in favor of the
plaintiff shall direct that partition be made between the parties
according to their respective rights, shares and interests and
shall designate three reputable and disinterested freeholders as
commissioners to make the partition so directed.
Sec. 916. INTERLOCUTORY JUDGMENT DIRECTING PARTIAL PARTITION.
Where the right, share and interest of a party has been
ascertained, and the rights, shares or interests of the other
parties as between themselves remain unascertained, an
interlocutory judgment for a partition shall direct a partition
as between the party whose share has been so determined and the
other parties to the action. Where the rights, shares and
interests of two or more parties have been thus ascertained and
determined, the interlocutory judgment may also direct the
partition among them of a part of the property proportionate to
their aggregate shares. In either case, the court, from time to
time, as the other rights, shares and interests are ascertained,
may render an interlocutory judgment directing the partition, in
like manner, of the remainder of the property. Where an
interlocutory judgment is rendered in a case specified in this
section, the court may direct the action to be severed, and final
judgment to be rendered with respect to the portion of the
property set apart to the parties whose rights, shares and
interests are determined, leaving the action to proceed as
against the other parties with respect to the remainder of the
property; and if necessary, the court may direct that one of
those parties be substituted as plaintiff.
Sec. 917. INTERLOCUTORY JUDGMENT DIRECTING PARTITION IN COMMON.
Where two or more parties desire to enjoy their shares in common
with each other, the interlocutory judgment may direct partition
to be so made as to set off to them their shares of the real
property partitioned, without partition as between themselves, to
be held by them in common.
Sec. 918. INTERLOCUTORY JUDGMENT DIRECTING SALE OR EXCEPTION OF
LIEN OR DOWER INTEREST.
1. An interlocutory judgment directing the sale of the property
may direct that the premises sold shall be free from the
lien of every debt of a decedent, from whom the plaintiff's
title is derived, or of a decedent who, if living, should be
a party to the action, except debts which were a lien upon
the premises before the death of such decedent.
2. Where a party has an existing right of dower in the entire
property directed to be sold, at the time when an
interlocutory judgment for a sale is rendered in an action
for partition, the court shall determine whether the
interests of all the parties require that the right of dower
should be excepted from the sale or that it should be sold.
If a sale of the property, including the right of dower, is
directed, the interest of the party entitled to the right of
dower shall pass thereby; and the purchaser, his heirs and
assigns, shall hold the property free and discharged from
any claim by virtue of that right.
Sec. 919. INTERLOCUTORY JUDGMENT DIRECTING CREDIT ON SALE.
The court, in the interlocutory judgment for a sale, shall direct
the terms of credit which may be allowed for any portion of the
purchase-money.
Sec. 921. ACTUAL PARTITION.
1. The commissioners designated by the interlocutory judgment
shall forthwith proceed to make partition as directed by
such judgment, unless it appears to them that partition
thereof, or of a particular lot, tract or other portion
thereof, cannot be made without great prejudice to the
owners; in which case, they shall make a written report of
that fact to the court.
2. The commissioners shall divide the property into distinct
parcels and allot the several parcels to the respective
parties, quality and quantity being relatively considered,
according to the respective rights and interest of the
parties as fixed by the interlocutory judgment. They shall
designate the several parcels by suitable monuments. They
may employ a surveyor, with the necessary assistants, to aid
them.
3. Where a party has a right of dower in the property, or a
part thereof, which has not been admeasured, or has an
estate by the curtesy or for life or for years in an
undivided share of the property, the commissioners may allot
to that party his share without reference to the duration of
the estate. They may make partition of the share so allotted
to that party, among the parties who are entitled to the
remainder or reversion thereof, to be enjoyed by them upon
the determination of the particular estate, where, in the
opinion of the commissioners, such a partition can be made
without prejudice to the rights of the parties.
Sec. 922. MEETING OF COMMISSIONERS; REPORT OF ACTUAL PARTITION;
CONFIRMING OR SETTING ASIDE REPORT.
1. All the commissioners shall meet together in the performance
of any of their duties, but the acts of a majority so met
are valid. They shall make a full report of their
proceedings, under their hands, specifying therein the
manner in which they have discharged their trust, describing
the property divided and the share or interest in a share
allotted to each party, with the quantity, courses and
distances or other particular description of each share, and
a description of the monuments; and specifying the items of
their charges. Their report shall be acknowledged or proved,
and certified, in like manner as a deed to be recorded, and
shall be filed in the office of the clerk.
2. The court shall confirm or set aside the report, and, if
necessary, may appoint new commissioners.
3. If the commissioners report that the property, or a
particular lot, tract or other portion thereof is so
circumstanced that a partition thereof cannot be made
without great prejudice to the owners, the court may render
a supplemental interlocutory judgment reciting the facts and
directing that the property or the distinct parcel so
circumstanced be sold.
Sec. 923. SECURITY FOR CREDIT ON SALE.
The portion of the purchase-money for which credit is allowed in
the interlocutory judgment shall be secured at interest by a
mortgage upon the property sold, with a bond of the purchaser;
and by such additional security, if any, as the court prescribes.
The officer making the sale may take separate mortgages and other
securities in the name of the county treasurer of the county in
which the property is situated for such convenient portions of
the purchase-money as are directed by the court to be invested;
and in the name of the owner, for the share of any known owner of
full age who desires to have it invested.
Sec. 925. REPORT OF SALE; CONFIRMATION.
1. Immediately after completing the sale, the officer making it
shall file with the clerk his report thereof under oath,
containing a description of each parcel sold, the name of
the purchaser and the price.
2. The court shall confirm or set aside the report.
Sec. 927. CONTENTS OF JUDGMENT AFTER ACTUAL PARTITION.
Upon the confirmation by the court of the report of the
commissioners making partition, final judgment shall be entered
directing that each of the parties who is entitled to possession
of a distinct parcel allotted to him, be let into the possession
thereof, either immediately, or after the determination of the
particular estate, as the case requires.
Sec. 928. EFFECT OF JUDGMENT AFTER ACTUAL PARTITION.
A final judgment after actual partition is binding and conclusive
upon the following persons, except parties and persons claiming
under them whose rights and interests are expressly left
unaffected:
1. The plaintiff; each defendant upon whom the summons was
served, either personally or without the state or by
publication; and his legal representatives.
2. Each person claiming from, through or under such a party, by
title accruing after the filing of the judgment-roll, or
after the filing in the proper county clerk's office of a
notice of the pendency of the action.
3. Each person not in being when the interlocutory judgment is
rendered who, by the happening of any contingency becomes
afterwards entitled to a beneficial interest attaching to,
or an estate or interest in, a portion of the property, the
person first entitled to which, or other virtual
representative whereof, was a party specified in the first
subdivision of this section.
Sec. 929. LIEN OF CREDITOR UPON SHARE PARTITIONED.
After actual partition the lien of a creditor having a lien on an
undivided share or interest in the property, who is or is not
made a party, shall attach only to the share or interest assigned
to the party upon whose share or interest the lien attached;
which shall be first charged with its just proportion of the
costs and expenses of the action, in preference to the lien.
Sec. 931. CONTENTS OF JUDGMENT AFTER SALE.
A final judgment confirming a sale shall direct the officer
making it to execute the proper conveyances and take the proper
securities pursuant to the sale, and also direct application of
the proceeds.
Sec. 933. EFFECT OF JUDGMENT AFTER SALE.
A final judgment after sale is binding and conclusive upon the
same persons upon whom a final judgment for actual partition is
binding and conclusive; and it bars each of those persons who is
not a purchaser at the sale from all right, title and interest in
the property sold. It is also a bar against each person not a
party who, at the time when it is entered, has a general lien by
judgment or decree on the undivided share or interest of a party,
if notice was given to appear before the referee and make proof
of liens, as prescribed in this article, and also against each
person made a party who then has a specific lien on any such
undivided share or interest; but a person having any such
specific lien appearing of record at the time of the filing of
the notice of the pendency of the action, who is not made a
party, is not affected by such judgment.
Sec. 941. JUDGMENT AS TO PARTIES HAVING INTEREST IN ENTIRE
PROPERTY.
If a tenant by the curtesy or for life or for years of the entire
property, or a person entitled to a contingent or vested
remainder or reversion in the entire property, or a creditor, or
other person, having a lien or interest which attaches to the
entire property, be made a defendant in the action, the final
judgment either may award to such a party his entire right and
interest, or the proceeds thereof, or where the right or interest
is contingent, direct that the proceeds or share thereof be
substituted for the property and invested for whoever may
eventually be entitled thereto, or may reserve and leave
unaffected his right and interest, or any portion thereof.
Sec. 943. JUDGMENT DIRECTING COMPENSATION TO EQUALIZE PARTITION.
Where it appears that partition cannot be made equal between the
parties according to their respective rights without prejudice to
the rights or interests of some of them, the final judgment may
award compensation to be made by one party to another for
equality of partition. But compensation cannot be so awarded
against a party who is unknown or whose name is unknown. Nor can
it be awarded against an infant unless it appears that he has
personal property sufficient to pay it and that his interests
will be promoted thereby.
Sec. 945. JUDGMENT ADJUSTING RENTS AND PROFITS.
The court may adjust the rights of a party as against any other
party by reason of the receipt by the latter of more than his
proper proportion of the rents or profits of a share.
Sec. 947. JUDGMENT AFFECTING STATE TAX CLAIM.
A judgment affecting adversely the title, interest or claim of
the state based upon a tax deed, shall provide in effect as
follows:
1. That the state shall have a lien upon such real property or
part thereof described in such tax deed, prior and superior
to all other liens, (a) for the amount of the unpaid taxes
not adjudged illegal in such action for which such real
property was sold or liable to be sold in the first instance
and for which such tax deed was issued, together with fees,
charges and interest; (b) for the amount of the unpaid taxes
not adjudged illegal in such action for which such real
property was subsequently sold or liable to be sold,
together with fees, charges and interest; (c) for the amount
of all taxes, fees and charges admitted or paid by the state
upon such real property to the date of the entry of such
judgment, together with interest thereon from the date of
such admission or payment. In the determination of the
amount of such lien, establishment of payments of taxes on
said land by the adjudged or admitted owner of the property
during any of the same years in which payments were also
made by the state shall reduce the lien of the state by the
larger of the two tax payments for each of the years
affected by duplicate payments, and in the event that wholly
identical areas are not affected by the duplicate payments
the court shall have power to apportion and adjust the
amount of the lien as equity may require.
2. That the state may foreclose such lien as a mortgage on real
property is foreclosed, provided such lien remains unpaid
after the expiration of one year from the entry of such
judgment.
The remedy provided by this section for recovery of tax
payments shall be in addition to any other remedy now or
hereafter available in law or in equity.
Sec. 951. RECORDING OF JUDGMENT.
A copy, which is certified as correct, of the final judgment may
be recorded in the office for recording deeds in each county in
which any real property affected is situated.
Sec. 961. DISPOSITION OF PROCEEDS OF SALE.
The proceeds of a sale, after deducting the costs and expenses
chargeable against them shall be immediately awarded as directed
by the final judgment, to the parties whose rights and interests
have been sold, in proportion thereto. The sum chargeable upon
any share to satisfy a lien thereon shall be paid to the
creditor, or retained, subject to the order of the court; and the
remainder except as otherwise prescribed in this article, shall
be paid by the officer making the sale, to the party owning the
share or his legal representatives or into court for his use. The
proceedings to ascertain and settle the liens upon an undivided
share shall not affect any other party to the action or delay the
paying over or investing of money to or for the benefit of any
other party upon whose share or interest in the property there
does not appear to be any existing lien.
Sec. 962. PAYMENT OF PROCEEDS INTO COURT WHERE THERE ARE LIENS.
If there is any existing lien upon the share or interest of a
party in the property, the interlocutory judgment directing the
sale shall direct the officer making it to pay into court the
portion of the money arising from the sale of the share or
interest of that party after deducting the portion of the costs
and expenses for which it is liable.
Sec. 963. PAYMENT OF PROCEEDS OUT OF COURT WHERE THERE ARE LIENS.
1. Where the proceeds of a sale are paid into court, in a case
specified in section 962, the party may apply to the court
for an order directing that the money, or such part as he
claims, be paid to him, and the court shall make such an
order as justice requires. The party shall by affidavit show
the amount actually due on each incumbrance, and the name
and residence of the owner of the incumbrance, as far as
they are known or can be ascertained with due diligence, and
showing service of a notice of the application on each owner
of an incumbrance. Service of the notice within the state
shall be personal, or by leaving it at the owner's residence
with some person of suitable age and discretion, at least
fourteen days previous to the application. Service without
the state, if personal, shall be made at least twenty days
previous to the application. If the owner of the incumbrance
resides without the state, and the place of his abode cannot
be ascertained with reasonable diligence, notice may be
served on him by publishing it in such newspaper or
newspapers as the court may direct, once in each week for
the four weeks immediately preceding the application.
2. When the whole amount of the unsatisfied liens upon an
undivided share has been ascertained, the court shall order
the portion of the money so paid into court on account of
that share to be distributed among the creditors having the
liens, according to the priority of each of them. Where the
incumbrancer is not a party to the action, the clerk or
other officer by whom a lien is paid off shall procure
satisfaction to be acknowledged or proved, as required by
law, and shall cause the incumbrance to be duly satisfied or
cancelled of record. The expense of so doing shall be paid
out of the portion of the money in court belonging to the
party by whom the incumbrance was payable.
Sec. 964. PAYMENT OF PROCEEDS INTO COURT IN CASES INVOLVING
DECEDENT'S PROPERTY.
Where the property has been sold free from the lien of debts, a
final judgment, entered before eighteen months have elapsed from
the granting of letters of administration or letters testamentary
upon the estate of a decedent from whom the plaintiff derived his
title, shall direct that the proceeds of the sale remaining after
the payment of the costs, referee's fees, expenses of sale, and
liens established before the death of the decedent, including any
sum allowed to a widow in satisfaction of her right of dower,
therein directed to be paid, be paid forthwith into court by the
referee making such sale.
A final judgment in such case, entered before eighteen months
have elapsed from the granting of letters of administration or
letters testamentary upon the estate of a deceased person, who,
if living, should be a party to the action, shall direct that the
share of the proceeds of such sale, which would have been his, if
living, be paid into court by such referee.
Sec. 965. PAYMENT OF PROCEEDS OUT OF COURT IN CASES INVOLVING
DECEDENT'S PROPERTY.
Money paid into court under section 964 may be paid out of court
to such parties as are entitled thereto by order of the court
made upon motion of any party, and upon:
1. Notice of motion to the executors or administrators of the
decedent and the furnishing of an undertaking that the
moving party will pay any and all claims, not exceeding the
amount paid into court, when required by order of the court
or by order of the surrogate of the surrogate's court in a
proceeding to mortgage, lease or sell the real property of
such decedent; except that where a final accounting has been
had in the estate of such decedent in a surrogate's court,
and certified copies of the account and decree of final
settlement, showing that all of the debts of the decedent
have been paid in full, is filed with the court having
jurisdiction of the fund, the court may dispense with the
furnishing of an undertaking; or
2. The furnishing of the certificate of the surrogate of the
county of which any such decedent was a resident at the time
of his death, showing that eighteen months have elapsed
since the issuing of letters testamentary or letters of
administration, as the case may be, upon the estate of said
decedent, and that no proceedings for the mortgage, lease or
sale of the real property of such decedent for the payment
of his debts or funeral expenses, or both, is pending, and
the certificate of the county clerk of the county where the
real property sold under the interlocutory judgment is
located, showing that no notice of pendency of action in
respect to such real property has been filed in his office.
The certificate of the surrogate required herein may be
executed in the name of the surrogate by the clerk of the
surrogate's court under the seal of the court.
Sec. 966. PAYMENT OF PROCEEDS DIRECTLY TO PARTIES IN CASES
INVOLVING DECEDENT'S PROPERTY.
Where the property has been sold free from the lien of debts and
the court is furnished with the certificates described in
subdivision 2 of section 965, the final judgment shall direct
payment of the proceeds of sale to such parties as are entitled
thereto.
Sec. 967. PAYMENT OF PROCEEDS TO OWNER OF PARTICULAR OR FUTURE
ESTATE.
A party who has a right of dower, or is a tenant for life or for
years, in or of an undivided share of the property sold, or has
an inchoate right of dower or any other future right or estate,
vested or contingent, or any person not in being who by any
contingency may become entitled to any interest or estate in the
property sold, is entitled to have a proportion of the proceeds
of the sale invested, secured or paid over, in such manner as the
court deems calculated to protect the rights and interests of the
parties.
Sec. 968. MANNER OF PAYMENT OF PROCEEDS TO OWNER OF PARTICULAR OR
FUTURE ESTATE.
Whenever the whole or a part of the proceeds of a sale represents
the interest of a particular estate, and also represents one or
more other interests subsequent thereto, the power to determine
whether the owner of the particular estate shall receive, in
satisfaction of his estate or interest, a sum in gross or shall
receive the earnings, as they accrue, of a sum invested for his
benefit in permanent securities at interest, rests in the
discretion of the court, except that if all parties affected
shall have agreed either to the payment of a sum in gross or the
investment of the proceeds the court shall, by order, give effect
to such agreement. The application of the owner of any such
particular estate for the award of a sum in gross shall be
granted unless the court finds that unreasonable hardship is
likely to be caused thereby to the owner of some other interest
in the affected real property. The application for the award of a
sum in gross by the owner of some interest in the affected real
property other than the owner of the particular estate shall be
granted if the court finds that the granting of such application
is equitable under the circumstances.
Sec. 969. SHARES OF INFANT, INCOMPETENT OR CONSERVATEE.
Where a party entitled to receive a portion of the proceeds of
sale is an infant, incompetent or conservatee, such portion may
be disposed of as follows:
1. The court may direct it to be invested in permanent
securities in the name and for the benefit of the infant,
incompetent or conservatee, or it may direct it to be paid
over to the general guardian of the infant, committee of the
incompetent or conservator of the conservatee, when the
guardian, committee conservator shall have executed an
undertaking to such infant, incompetent or conservatee; or,
2. Where a general guardian, committee or conservator has been
appointed, upon proof that it will be for the best interest
and advantage of the estate of such infant, incompetent or
conservatee person, the court may authorize and direct such
guardian, committee or conservator, in the name of such
infant, incompetent person or conservatee, to make
application for an award of a sum in gross as provided in
section 968; or,
3. If any of the moneys arising from the proceeds of such sale
shall have been paid to the county treasurer, and on due
proof that such money has remained uninvested in permanent
securities for the space of three months, the court may
direct the same to be paid to the general guardian,
committee or conservator of such infant, incompetent or
conservatee upon his giving an undertaking for the faithful
execution of his trust; where said sum in hands of county
treasurer does not exceed the sum of one thousand dollars
the court may direct the same to be paid in accordance with
subdivision five of this section; or,
4. In the case of an infant, incompetent or conservatee
residing without the state and having in the state or
country where he or she resides a general guardian,
committee or conservator, or person duly appointed under the
laws of such state or country to the control, and entitled
by the laws of such state or country to the custody, of the
money of such infant, incompetent or conservatee, the court,
upon satisfactory proof of such facts and of the sufficiency
of the undertaking given by such general guardian, committee
or conservator or person in such state or country by the
certificate of a judge of a court of record of such state or
country, or otherwise, may direct that the portion of such
infant, incompetent or conservatee arising upon such sale
shall be paid over to such general guardian, committee or
conservator or person; or,
5. If the portion of the proceeds arising upon such sale which
belongs to an infant, incompetent or conservatee residing
within or without the state does not exceed one thousand
dollars, the court may direct that the same may be paid to
his father, or to his mother or to some competent person
with whom the infant, incompetent or conservatee resides, or
who has some interest in his welfare, for the use and
benefit of such infant, incompetent or conservatee.
Sec. 970. SHARES OF UNKNOWN OR ABSENT OWNER.
Where a person has been made a defendant as an unknown person, or
where the name of a defendant is unknown, or where the summons
has been served upon a defendant without the state or by
publication, and he has not appeared in the action, the court
shall direct his portion to be paid into court and invested in
permanent securities at interest, for his benefit, until claimed
by him or his legal representatives.
Sec. 971. SECURITY FOR REFUND.
The court, in its discretion, may require any person, before he
receives his portion of the proceeds of the sale to give such
security as it directs, to the state, or the county treasurer,
who shall hold it for the use and benefit of the persons
interested, or to such parties or other persons as it prescribes,
to refund the same, or a portion thereof, with interest, if it
thereafter appears that he was not entitled thereto.
Sec. 973. REPORT OF DISPOSITION OF PROCEEDS.
Within sixty days after the entry of final judgment, unless such
time be extended by an order of the court entered in the office
of the clerk within said sixty days, the officer making the sale
shall file with the clerk his report under oath of the
disposition of the proceeds of the sale, accompanied by the
vouchers of the persons to whom payments were ordered to be made.
Sec. 981. COSTS AND EXPENSES.
1. The final judgment for the partition of the property must
also award that each defendant pay to the plaintiff his
proportion of the plaintiff's costs, including the
additional allowance. The sum to be paid by each must be
fixed by the court according to the respective rights of the
parties, and specified in the judgment.
2. If a defendant is unknown, his proportion of the costs shall
be fixed and specified in like manner. An execution against
an unknown defendant may be issued to collect the costs
awarded against him as if he were named in the judgment; and
his right, share or interest in the property may be sold by
virtue thereof as if he were named in the execution.
3. Where final judgment confirming a sale is rendered, the
costs of each party to the action and the expenses of the
sale, including the officer's fees, shall be deducted from
the proceeds of the sale and distributed as the court shall
order. But the court, in its discretion, may direct that the
costs and expenses of any trial, reference or other
proceeding in the action be paid out of the share of any
party in the proceeds, or may render judgment against any
party therefor. Where a proportion of the proceeds is to be
paid to or invested for the benefit of any person, as
prescribed in any provision of this article, the amount
thereof must be determined by the residue of the entire
proceeds remaining after deducting the costs and expenses
chargeable against them.
4. The officer making the sale shall pay out of the proceeds,
unless the judgment otherwise directs, all taxes,
assessments and water rates, which are liens upon the
property sold, and redeem the property sold from any sales
for unpaid taxes, assessments or water rates, which have not
apparently become absolute. The sums necessary to make those
payments and redemptions are deemed expenses of the sale.
5. After actual partition, the fees and expenses of the
commissioners, including the expense of a survey when it is
made, shall be taxed under the direction of the court, and
the amount thereof shall be paid by the plaintiff and
allowed as part of his costs.
6. Fees of surveyor or commissioner in action for partition.
The fees of a surveyor and a surveyor's assistant, employed
as prescribed by law in an action for partition, and of a
commissioner appointed as prescribed by law to make
partition, shall be the same as those provided by section
1052 of this chapter for services rendered in an action for
dower.
Sec. 991. PROCEEDING FOR SHARE OF UNKNOWN HEIRS; PRESUMPTION OF
DEATH; SERVICE.
1. Where a portion of the proceeds of the sale is paid into
court for unknown heirs and is unclaimed by any person
entitled thereto for twenty-five years after such payment
the unknown heirs are presumed to have been dead at the time
of the sale. A special proceeding may be commenced for the
distribution of such proceeds to the persons entitled
thereto.
2. The notice of petition and petition shall be served upon the
unknown heirs or their representatives, the known heirs,
their next of kin, representatives or distributees, and all
persons interested in such proceeds. Service shall be made
at least twenty days before the time at which the petition
is noticed to be heard. Each of the known persons within the
state, and the comptroller of the state if any proceeds have
been paid over to him by a county treasurer, shall be served
personally. All other persons shall be served in the manner
prescribed for the service by publication of a summons.
Sec. 992. JUDGMENT IN PROCEEDING FOR SHARE OF UNKNOWN HEIRS.
Unknown heirs or their representatives not appearing shall be
barred from any interest and the court shall render a judgment
that the interest of such unknown heirs was vested in the known
heirs of the ancestor from whom the unknown heirs derived title
and that the proceeds be paid out of court to the persons
entitled thereto.
