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and the premises shall have been sold, free from the lien of debts, as above provided, then, upon producing to the court the certificate of the surrogate of the county of which the decedent was at the time of his death a resident, showing that three years have elapsed since the issuing of letters of administration or letters testamentary as the case may be upon the estate of said decedent and that no proceeding for the mortgage, lease or sale of the real property of the decedent for the payment of his debts or funeral expenses or both is pending and upon the certificate of the clerk of the county where the real property sold under the interlocutory judgment is located showing that no notice provided for in section twenty-seven hundred and of the code of civil procedure has been filed in his office the court rendering the final judgment shall direct the payment of the different shares to the several parties entitled thereto; except that the share of a deceased person, who if living, should be a party to the action shall be paid into court as above provided, unless three years have also elapsed since the granting of letters of administration or letters testamentary, as the case may be, upon the estate of said last mentioned deceased person, and like certificates of the surrogate and county clerk are produced to the court. [AM'D BY CH. 78 of 1898. In effect March 16, 1898.]

$ 1539. Parties in partition. The plaintiff may, at his election make a tenant, by the curtesy, 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 creditor, or other person, having a lien or interest which attaches to the entire property, a defendant in the action. In that case, the final judgment may either award to such a party his or her 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

receive and leave unaffected his or her right and interest, or any portion thereof. A person specified in this section, who is not made a party, is not affected by the judgment in the action. (AM'D Ch. 581 OF 1892.]

$ 1510. Id; as to persons having liens. — The plaintiff may, at his election, make a creditor, having a lien on an undivided share or interest in the property,


a defendant in the action. In that case, he must set forth the nature of the lien, and specify the share or interest to which it attaches. If partition of the property is made, the lien, whether the creditor is or is not made a party, shall thereafter attach only to the share or interest assigned to the party upon whose share or interest the lien attached; which must be first charged with its just proportion of the costs and expenses of the action in preference to the lien.

$ 1541. Provision, where a party is unknown. Where a defendant having a share or interest in the property is unknown, or where his name or part of his Dame is unknown, and the summons is served upon him by publication, or without the State. pursuant to an order for that purpose, as prescribed in article second of title first of chapter fifth of this act, the notice subjoined to ihe copy of the summons as published, or served therewith, must, in addition to the matters required in that article, state briefly the object of the action, and contain a brief description of the property.

$ 1542. Complaint to state interests of parties. The complaint must describe the property with common certainty, and must specify the rights, shares and interests therein of all the parties, as far as the same are known to the plaintiff. If a party, or the share, right, or interest of a party, is unknown to the plaintiff; or if a share, right, or interest is uncertain or contingent; or if the ownership of the inheritance depends upon an executory devise; or if a remainder is a contingent remainder, so that the party cannot be named; that fact must also be stated in the complaint.

$ 1543. Title of parties may be tried. The title or interest of the plaintiff in the property, as stated in the complaint, may be controverted by the answer. The title or interest of any defendant in the property, as stated in the complaint, may also be controverted by his answer, or the answer of any other defendant; and the title or interest of any defendant, as stated in his answer, may be controverted by the answer of any other defendant. A defendant thus controverting the title or interest of a co-defendant, must comply with section 521 of this act. The issues, joined as prescribed in this section, must be tried and deiermined in the action.

$ 1544. Issues of fact, triable by jury. An issue of fact, joined in the action is triable by a jury. Unless the court directs the issues to be stated, as prescribed in section 970 of this act, the issues may be tried upon the pleadings.

$ 1545. When title to be ascertained by the court. Where a defendant has made default in appearing or pleading, or where a party is an infant, the court must ascertain the rights, shares and interests of the several parties in the property, by : reference or otherwise, before interlocutory judgment is rendered in the action.

$1546. Interlocutory judgment. The interlocutory judgment must declare what is the right, share or interest of each party in the property, so far as the same has been ascertained, and must determine the rights of the parties therein. Where it is found by the verdict, report, or decision, or where it appears to the court, upon an application for judgment in favor of the plaintiff, that 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 specially prescribed in this article, must direct that the property, or the part thereof which is so circumstanced, be sold at publicauction. Otherwise, an interlocutory judgment in favor of the plaintiff, must direct that partition be made between the parties, according to their respective rights, shares and interests.

$ 1547. Partial partition ; when made. Where the right, share, and interest of a party has been ascertained and determiner, and the rights, shares, or interests of the other parʻies, as between themselves, remain unascertained or undetermined, an interlocutory judgment for a pa tition, rendered as prescribed in the last section, must direct a parition, as between the party whose share has been so determined and the other partie. to the action. Where the rights, shares, and interests of two or more parties have been thus ascertained and determined, the interlo utory judgment may also direct the partition among them of a part of the property, proportionate to their aggregate shares. In either case, the court may, from time to time, as the other rights, shares, and interests are ascertained and determined, 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 erered, and final judgment to be rendered, with respect to the portion of the property set apart to the parties, whose :ights, 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 I those parties de sub ituted as plaintiff.

§ 1548. Shares may be set-off in common. Where two or more parties to an action for partition, make it appear to the court, that thy desire to enjoy their shares in common with each other, the interlocutory judgment may, in the discretion of the court, direct partition to be so made, as to setoff to them their shares of the real property partitioned, without partition as between themselves, to be held by them in common.

$ 1549. Appointment of commissioners. Where the interlocutory judgment, in an action for partition, directs a partition, it must designate three reputable and disinterested freeholders as commissioners, to make the partition so directed.

$ 1550. Commissioners to be sworn, etc. Each of the commissioners must, before entering upon the execution of his duties, subscribe and take an oath before an officer specified in section 842 of this act, to the effect that he will faithfully, honestly, and impartially discharge the trust reposed in him. Each commissioner's oath must be filed with the clerk, before he enters upon the execution of his duties. The court may, at any time, remove either of the commissioners. If either of them dies, resigns, neglects, or refuses to serve, or is removed, the court may, from time to time, by order, appoint another person in his place.

$ 1551. Id. ; when to make partition. The commissioners must forthwith proceed to make partition, as directed by the interlocutory judgment, unless it appears to them, or a majority of 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 must make a written report of that fact to the court.

$ 1552. Partition; how made. In making the partition, the commissioners must divide the property into distinct parcels, and allot the several parcels thereof to the respective parties, quality and quantity being relatively considered, according to the respective rights and interests of the parties, as fixed by the interlocutory judgment. They must designate the several parcels by posts, stones, or other permanent monuments. They may employ a surveyor, with the necessary assistants, to aid them in so doing.

$ 1553. Provision where there is a particular estate. 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, for life, or for years, in an undivided share of the property, the commissioners may allot to that party his or her share of the property, without reference to the duration of the estate. And they 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.

$ 1554. Report of comunissioners. All the commissioners must meet together in the performance of any of their duties; but the acts of a majority so met are valid. They, or a majority of them, must 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 posts, stones, or other monuments; and specifying the items of their charges. Their report must be acknowledged or proved, and certified, in like manner as a deed to be recorded, and must be filed in the office of the clerk.

$ 1555. Fees and expenses. The fees and expenses of the commissioners, including the expense of a survey, when it is made, must be taxed under the direction of the court; and the amount thereof must be paid by the plaintiff, and allowed as part of his costs.

$ 1556. Confirming or setting aside report. The court must confirm or set aside the report, and may, if necessary, appoint new commissioners, who must proceed as directed in this article.

$ 1557. Final judgment on report. Effect thereof Upon the confirmation, by the court, of the report of the commissioners making partition, final judgment, that the partition be firm and effectual forever, must be rendered, which is binding and conclusive upon the following persons :

1. The plaintiff; each defendant upon whom the summons was served, either personally, or without the State, or by publication, pursuant to an order obtained for that purpose, as prescribed in chapter fifth of this act; and the legal representatives of each party, specified in this subdivision. So much of section 445 of this act, as requires the court to allow a defendant to defend an action, after final judgment, does not apply to an action for partition.

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, as prescribed in article ninth of this title.

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.

But this section does not apply to a party whose right and interest are expressly reserved and left unaffected, as prescribed in section 1539 of this act, or to a person claiming from, through, or under such a party.

$ 1558. Judgment must direct delivery of possession. The final judgment must also direct 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

$ 1559. Costs; how awarded ; Id.; against unknown parties. 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 extra 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. If a defendant is unknown, his proportion of the costs must 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 was named in the judgment; and his right, share, or interest in the property may be sold by virtue thereof, as if he was named in the execution.

$ 1560. Sale of property when directed. If the commissioners, or a majority of them, 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 thereof, the court if it is satisfied that the report is just and correct, may thereupon, except as otherwise expressly prescribed in this article, modify the interlocutory judgment, or render a supplemental interlocutory judgment, reciting the facts, and directing that the property, or the distinct parcel thereof so circumstanced, be sold by a referee, designated in the judgment, or by the sheriff.

$ 1561. Reference to inquire as to creditors. Before an interlocutory judgment for the sale of real property is rendered, in an action for partition, the court must, either with or without application by a party, direct a reference, to ascertain whether there is any creditor, not a party, who has a lien on the undivided share or interest of any party. But the court may direct or dispense with such a reference, in its discretion, where a party produces a search, certified by the clerk, or by the clerk and register, as the case requires, of the county where the property is situated; and it appears therefrom, and by the affidavits, if any, produced therewith, that there is no such outstanding lien.

$ 1562. Duty of referee. Where a reference is directed, as prescribed in the last section, the referee must cause a notice to be published once in each week for six 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 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 must 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. (AM'D CH. 686 OF 1887.]

$ 1563. Money to be paid into court. If it appears by the pleadings. or by the evidence in the action, or by the report, that there was, at the date of the order, any existing lien upon the share or interest of a party in the property, the interlocutory judgment, directing the sale, must also 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 experses for which it is liable.

$ 1564. Application for money. Where money is paid into court, in a case specified in the last section, the party may apply to the court for an order directing that the money, or such part thereof as he claims, be paid to him. Upon such an application, he must produce the following papers :

1. An affidavit, made by himself, or if a sufficient excuse is shown, by his agent or attorney, stating the true 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.

2. An affidavit, showing service of a notice of the application upon each owner of an incumbrance. Service of the notice within the State, must be personal, or by leaving it at the owner's residence, with some person of suitable age and discretion, at least fourteen days previons to the application. Service, without the State, if personal, must 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 upon him by publishing it in the newspaper printed at Albany, in which legal notices are required to be published, once in each week for the four weeks immediately preceding the application.

Upon the application, the court must make such an order as justice requires.

8 1565. Payment of incumbrances. When the whole amount of the unsatisfied liens upon an undivided share, which were existing at the date of the order of reference, has been ascertained, the court must 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 incunibrancer, is not a party to the action, the clerk or other officer, by whom the lien is paid off, must procure satisfaction thereof to be acknowledged or proved, as required by law, and must cause the incumbrance to be duly satisfied or cancelled of record. The expense of so duing must be paid out of the portion of the money in court, belonging to the party, by whom the incumbrance was payable.

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