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$ 1566. Other parties not to be delayed. The proceedings to ascertain and settle the liens upon an undivided share, as prescribed in the last three sections, 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.

$ 1567. Sale of dower interest. 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 must consider and 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.

$ 1568. Purchaser to hold the property free therefrom. 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. In that case, the dowress is entitled to receive, from the proceeds of the sale of the whole property, a gross sum, in satisfaction of her right of dower, or to have one-third of those proceeds paid into court, for the purpose of being invested for her benefit, as prescribed in the next section with respect to the dowress of an undivided share.

$ 1569. Gross sum to be paid to or invested for tenant in dower, etc. A party to an action for partition, 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, is entitled to receive, from the proceeds of the sale, a gross sum, to be fixed, according to the principles of law applicable to annuities, in satisfaction of his or her estate or interest. The written consent of the party to receive such a gross sum, acknowledged or proved, and certified, in like manner as a deed to be recorded, must be filed at the time of, or before, the filing of the report of sale; otherwise, the court must direct that, out of the proceeds of the sale, which belong to the undivided share to which the estate or interest attaches, one-third, in case of a dowress, and in any other case arising under this section, the entire proceeds, or such a proportion theref as fairly represents the interest of the holder of the particular estate, be paid into court, for the purpose of being invested for his or her benefit.

$ 1570. Interests of owners of future estates to be protected. Where it appears, that a party to the action has an inchoate right of dower, or any other future right or estate, vested or contingent, or that any person or persons not in being who may by any contingercy become entitled to any interest or estate, in the property sold, the court must fix the proportional value of the right or estate, according to law applicable to annuities and survivorships, or set aside so much of the proceeds of sale to which the contingency attaches, and must direct that proportion of the proceeds of sale to be invested, secured, or paid over, in such manner as it deems best calculate i to protect the rights and interests of the parties. [Am'd ch. 581 of 1992.]

$ 1571. Married woman may release her interest. A married woman mav release to her husband her inchoate right or dower, in the property directed to be sold, by a written instrument, duly acknowledged by her and certified, as required by law with respect to the acknowledgment of a conveyance to bar her dower; which must be filed with the clerk. Thereupon, the share of the proceeds of the sale, arising from her contingent interest, must be paid to her husband.

$ 1572. Unknown owners. If a person, entitled to an estate or interest in the property sold, is made a party as an unknown defendant, the court must provide for the protection of his rights, as far as may be, as if he was known and had appeared.

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$ 1573. Sale; terms of credit thereupon. The court must, in the interlocutory judgment for a sale, direct the terms of credit which may be allowed for any portion of the purchase-money, of which it thinks proper to direct the investment, and for any portion of the purchase-money, which is required to be invested for the benefit of a person, as prescribed in this article.

$ 1574. Credit; how secured. The portion of the purchase-money, for which credit is so allowed, must always 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.

$ 1575. Separate securities. 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.

$ 1576. Report of sale. Immediately after completing the sale, the officer making it must file with the clerk his report thereof, under oath, containing a description of each parcel sold, the name of the purchaser thereof, and the price at which it was sold.

$ 1577. Final judgment; effect thereof. If the sale is confirmed by the court, a final judgment must be entered, confirming it accordingly; directing the officer making it to execute the proper conveyances, and take the proper securities, pursuant to the sale; and also directing concerning the application of the proceeds of the sale. Such a final judgment is binding and conclusive upon the same persons, upon whom a final judgment for partition is made binding and conclusive by section 1557 of this act; and it effectually bars each of those persons, who is not a purchaser at the sale, from all right, title, and interest in the property sold.

§ 1578. Id.; effect thereof upon incumbrancers. Such a final judgment is also a bar against each person, not a party, who has, at the time when it is rendered, 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 section 1562 of this act, 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. [Am'd Ch. 393 of 1883.]

$ 1579. Costs and expenses; how paid. Where final judgment, con

$ firming a sale, is rendered, the costs of each party to the action, and the expenses of the sale, including the officers' fees, must be deducted from the proceeds of the sale, and each party's costs must be paid to his attorney. But the court may, in its discretion, 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.

S 1580. Distribution of proceeds. The proceeds of a sale, after deducting therefrom the costs and expenses chargeable against them, must be awarded to the parties whose rights and interests have been sold, in proportion thereto. The sum chargeable upon any share, to satisfy a lien thereon,

must be paid to the creditor, or retained, subject to the order of the court; and the remainder, except as otherwise prescribed in this article, must be paid by the oflicer making the sale, to the party owning the share, or his legal representatives, or into court for his use.

$ 1551. Shares of infants.- Where a party entitled to receive a portion of the proceerds is an infant, the court may direct it to be invested in permanent securities in the name and for the benetit of the infant, or it may direct it to be paid over to the general guardian of the said infant when the guardian shall have executed to such infant a bond with two sureties which shall be approved by the court; or, 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 ihree months, may direct the same to be paid to the general guardian of such infant upon his giving an undertaking in an amount and with securities satisfactory to the court for the faithful cxecution of his trust. In the case of an infant residing without the state, and luring in the state or country where he or she resides a general guardian, or person duly minted under the law8 of such state or country, to the control and entitled, by the larox of such state or country, to the custody of the money of such infant, the court, "pon satisfictory proof of such facts and of the sufficiency of the bond or security given by such general quardian or person in such state or country by the certificate of a judge of a court of retird of such state or country, or otherwise, may direct that the portion of such infant arising uron such sale shall be paid orer to such general guardian or person. [AM'D BY CH. 602 OF 1897. In effect Sepi. 1, 1897.]

$ 1582. Shares of unknown and absent owners. 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 must direct his portion to be invested in permanent securities, at interest, for his benefit, until claimed by him or his legal representatives; but after the lapse of twenty five years from the time of the pay. ment into court, or to the treasurer of any county, of any portion of the proceeds of the sale of real property, for unknown heirs, heretofore or hereafter to be made in any ac. tion of partition, without any claim therefor having been made by any person entitled thereto, and upon there being made and presented to the court, at a special term thereof, proof, by petition or otherwise, showing to the satisfaction of the court, that due inquiry for such unknown heirs, or their representatives, has been made and that they cannot be found, and that no claim has been made for such portion of said proceeds by any person entitled thereto, proceedings shall thereupon be taken in said court, and an insestigation had therein as to the heirship, death or whereabouts of such unknown heirs or their representatives, and as to the known heirs of the ancestor of such unknown heirs, the next of kin, representatives and distributees of such known heirs, and as to all persons interested in such proceeds, and their respective interests therein, and the said court shall, by an order made in the action, direct that a notice entitled in the action and signed by the petitioner, or his attorney, and directed to such unknown heirs or their representatives, and to known heirs, their next of kin, representatives, or distributees, and all persons interested in such proceeds, be served upon them by the pub lication thereof, the same to be published once in each week for six successive werks in & Dewspaper published in the county where the action was brought, and in such other newspapers as the court may direct, ordering and requiring such unknown heirs, or their representatives, and all knowu heirs, their next of kin, or representatives, and all persons interested in such proceeds, and each of them to be and appear in said coart at å special term thereof, at a time and place to be specified in said order and notice, and at least six weeks from the date of the first publication of such notice, to then and there establish their heirship and identity, kinship and interest, and submit any proof. as to such unknown heirs, or their representatives, and the kuown heirs, their next of kin, representatives or distributees, and all persons interested and their interest in such proceeds, they may desire and that in case of their default in so doing, that the said proceeds will be distributed and paid over to the known heirs of the ancestor from whom such unknown heirs derived title thereto, and to their heirs, next of kin, representatives, distributees and assigns, and that they and each of them shall thereafter be for. erer barred of and from all and every cause or causes of action for such proceeds, or on account thereof, or growing out of the distribution thereof, and of and from all right, title, claim and interest in and to such proceeds, and shall be deemed to have surrendered all right, claim and interest in and to such proceeds. The order must contain a direction that a copy of the notice must be served on each of the persons named in the order, if within the state, in the manner prescribed for the service of a summons on a defendant in an action in the supreme court, at least twenty days before the time speci. fied in the notice. The publication of such notice, as required by said order, is hereby mare and shall be deemed and taken for all purposes to be due and complete service uprin each and every of such unknown heirs or their representatives, and the known heirs, their next of kin, and representatives, and all persons interested in such procpeds, of due notice of the proceedings to distribute and pay out such proceeds, and shall be conclusive upon each and all of them. Proof of such personal service may be made by the affidavit of the person making the same, and proof of the publication of such notice may be made by affidavit of the publisher of such paper or papers. At the

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time and place specified in the said order and notice, such unknown heirs or their representatives, and all known heirs, their next of kin, representatives or distributees, devisees, and all persons interested in such proceeds, shall appear in court, in person or by attorney, and make proof establishing their beirship and identity, kinship and interest in such proceeds, and upon proof being made to the satisfaction of the court of the heirship and identity of the unknown heirs, the proceeding for distribution shall be dismissed. And if such unknown heirs or their representatives, do not so appear in court at the time and place specified in such notice and order, to establish their heirship and identity, kinship or interest, they and each of them, and every person claiming under or through them, shall thereafter be forever barred of and from all and every cause or causes of action for such proceeds, or on account thereof, or growing out of the distribution of such' proceeds, and of and from all right, title, claim and interest in and to such proceeds, and shall be deemed to have surrendered all right, claim and interest in and to such proceeds. And upon proofs being made of such publication, and show. ing to the satisfaction of the court that such unknown heirs or their representatives cannot be found, or are dead, the said court shall have power to decree accordingly, and to decree that the share or interest of such unknown heirs in such real property was vested, at the time of such sale, in the known heirs of the ancestor from whom such unknown heirs derived title thereto, and to decree that the unclaimed portion of such proceeds was vested at the time of such payment in such known heirs, and that such heirs, their heirs, next of kin, representatives, distributees, devisees and assigns, are entitled thereto; and the said court shall make an order in such action, directing the payment to them, or their assigns, of the respective shares or portions of, or interest in such proceeds to which they are entitled; and which order shall be entered in the office of the clerk of the county where the original action was brought, and after baving been so entered for three months, shall be conclusive evidence of the regularity of the pra ceedings upon which it is based, and of all the facts set forth therein; and, upon serv. ing upon the county treasurer a certified copy of such order, the treasurer shall so pay over and distribute such proceeds, after deducting his lawful commissions, and shall thereupon be exempt from all liability on account thereof; and if any such proceeds shall have been paid over by any county treasurer to the treasurer of the state of New York, under the provisions of section seven hundred and fifty-three of this act, due no tice of said applications and proceedings shall be given to the comptroller of the state of New York, and the said proceeds shall be paid out by the treasurer of the state of New York, as provided by sections seven hundred and fifty-one and seven hundred and fifty-three of this act, and upon such payment he shall thereupon be exempt from allt liability on account thereof. [AM'D BY CH. 203 OF 1893.]

$ 1583. Id.; of tenants of particular estates. Where a portion of the proceeds, representing an undivided share or interest, is invested for the benefit of a tenant for life, or for years, or of a widow, as prescribed in the foregoing provisions of this article, the court must cause it to be invested in permanent securities, at interest, and the interest to be paid, from time to time as it accrues, to the person for whose benefit it is invested, while his or her right continues.

$ 1584. Court may require security to refund. The court may, in its discretion, require any person, before he receives his portion of the proceeds of the sale, to give such security as it directs, to the people, 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.

$ 1585. Security to be taken in name of county treasurer. A security taken under any provision of this article, except as otherwise specially prescribed therein, must be taken in the name and official title of the county treasurer of the county in which the property sold is situated. He, and his successors in office, must hold the same for the use and benefit of the per sons interested, subject to the order of the court.

$ 1586. Action thereupon. The court may, in its discretion, and upon such terms and conditions as justice requires, make an order, allowing a per son, interested in a security specified in the last section to maintain an action thereupon in the name of the county treasurer.

$ 1587. Compensation to equalize partition. Where it appears that partition cannot be made equal between the parties, according to their S 1558-1595.

ACTION FOR DÓWER.

Tit. 1. Ch. 14

acuput -ve rights, wiicut prejudice to the rights or interests of some of them, the final judgment may award compensation to be made by one pazty 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 interest will be promoted ereby.

$ 1588. Proceedings on death of parties. If, upon the death of one f two or more plaintiffs, or one of two or more defendants, in an action fo partition, the interest of the decedent in the property passed to a person not a party to the action, the latter may be made defendant by the order of the court; and a supplemental summons may be issued, to bring him in accordingly.

$ 1589. Rents, etc., may be adjusted Nothing contained in this article prevents the courts from adjusting, in the interlocutory or final judgment, or ciherwise, as the case requires, the rights of one or more of the parties, as against any other party or parties, by reason of the receipt, by the latter, of more than his or their proper proportion of the rents or profits of a share, or part of a share.

$ 1590. Partition by guardian of infant, committee of lunatic, etc. When an infant, idiot, lunatic, or habitual drunkard, holds real property in joint tenancy or in common, the general guardian of the infant, or the committee of the idiot, lunatic or habitual drunkard, may apply to the supreme court, or to the county court of the county, wherein the real property is situated for authority to agree to a partition of the real property. [AM'D BY Ca. 946 OF 1895. In effect Jan. 1, 1896.]

$ 1591 Contents of petition. Such an application must be by a petition, which must describe the real property proposed to be partitioned; must state the rights and interests of the several owners thereof; must specify the particular partition proposed to be made; and must be verified by affidavit. The court may order notice of the application to be given to such rersons as it thinks proper.

$ 1592. Court may authorize partition. If after due inquiry into the merits of the application by a reference of otherwise, the court is of the opinion that the interests of the infant, or of the idiot, lunatic or habitual drunkard will be promoted by the partition, it may make an order anthorizing the partitioner to agree to the partition proposed, and in the name of the infant, or of the idiot, lunatic, or habitual drunkard, to execute releases of his right and interest in and to that part of the property which falls to the shares of the other joint-tenants or tenants in common.

The court may, in its discretion, for the furtherance of the interest of said infant, idiot, lunatic or habitual drunkard, direct partition to be so made as to set off to him or them his or their share in common with any of the other owners, provided the consent in writing thereto of such owners shall be first obtained. [Am'd Ch. 208 of 1886.]

8 1593. Effect of releases. Releases so executed have the same validity and effect, as if they were executed by the person in whose behalf they are executed, and as if the infant was of full age, or the idiot, lunatic, habitual drunkard was of sound mind, and competent to manage his affairg.

$ 1594. When the State is interested. The people of the state may be made a party defendant to an action for the partition of real property, in the same manner as a private person. In such a case, the sum:nons must ive served upon the attorney-general, who must appear in behalf of the peopio.

$ 1595. Exemplified copy of judgment may be recorder An exemplified copy of the judgment-roll, or of the final judgment, in an action for partition, may be recorded in the office for recording deeds, in each (GDINY in which any real property affected thereby is situated.

ARTICLE THIRD,

ACTION FOR DOWKR.

horios 1596. Ilmitation of action for dower.

1697 Against whom action to be broughl..

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