Title 35

If, at the hearing, it appears that the intervention of commissioners is unnecessary to secure an equal partition in kind, or that the same can be effected by providing owelty, and that it would best promote the interest of the parties, the circuit court may order the partition a…

(a) When it is necessary to make any person a party defendant in any partition proceedings brought under the provisions of this article for partition sale of land, or any interest therein and the plaintiff, after exercising reasonable diligence, is unable to locate the whereabout…

Any property, real, personal or mixed, held by joint owners or tenants in common, may be divided among them, on the written application of one or more of them to the probate court of the county in which the property is situated; and such application may be made by the executor or…

When partition is sought of a tract of land lying partly in different counties, the application may be made to the probate court of either county, and the partition shall be made at the courthouse of the county of the judge of such court; and when made, the judge of such court sh…

The application for division or partition must set forth the names of all the persons interested in the property, their residence, if known, whether they are over or under 19 years of age, a full and accurate description of the property sought to be divided or partitioned, the in…

Upon the filing of the application, a day not less than 30 days thereafter must be appointed for hearing the same; and of the time and place of such hearing, all parties in interest must have at least 10 days’ notice; and when infants or persons of unsound mind are parties, if th…

When it is necessary to make any persons defendant to a petition in the probate court filed for the partition of property or for a sale thereof because it cannot be equitably divided, and the names of all or any of such persons are unknown to the petitioner and cannot be ascertai…

If, upon the hearing, the court is satisfied from the proof that the property described in the application is held and owned jointly, or in common, it must decree the same to be divided or partitioned among the joint owners or tenants in common, according to their respective inte…

The commissioners must be sworn faithfully to execute the trust reposed in them, and to make the division or partition fairly and impartially, if the same can be made; and the division or partition shall be conducted in all respects, as nearly as may be, consistently with the pro…

In case of partition of lands, the commissioners must give notice, by publication in some newspaper published in the county, if there is one, or if not, in the one nearest thereto, to be made not less than three successive weeks, that they will, on a day designated, attend at the…

On the day designated, the commissioners must, in the presence of the judge of probate, determine by lot to whom each of the several parcels belongs, and make a statement in writing of the result, setting forth to whom the several parcels or lots were allotted, together with all …

The application, commission, statement of the commissioners and plat and map must be filed in the office of the judge of probate, and, together with all orders made by him, must be recorded in a book kept by him for the record of conveyances of land, and when recorded, the record…

The partition so made vests a title in fee simple in the persons to whom the several shares are allotted, as fully and completely as if each had conveyed to the others; but if any fraud or undue influence be employed by any of the parties to obtain an unfair partition or allotmen…

When there is a lien on an undivided interest of any of the parties, such lien, if a partition is made, is thenceforth a charge only on the share assigned to such party; but such share must first be charged with its just proportion of the costs of the partition, in preference to …

If any of the commissioners die, resign or neglect or refuse to act, at any time before the final allotment, others may be substituted in their stead by the probate court, and they shall have the same power in completing such partition and allotment as if they had been originally…

The commissioners are entitled to $2.00 per day for each day while they are engaged in such partition and allotment, and all expenses they may have incurred in causing survey, map, and plat to be made, or otherwise, in the discharge of their duties. (Code 1852, §2688; Code 1867, …

The probate court must ascertain the costs and expenses attending the division, and make a record thereof, stating distinctly each item of such costs and expenses; and if the same are not paid within 30 days after the allotment, an execution may be issued against each of the pers…

No division or partition or sale for distribution can be made under this article, in the probate court when an adverse claim or title is asserted by anyone, or brought to the knowledge of the commissioners, or of the judge of probate. (Code 1852, §2690; Code 1867, §3118; Code 187…

The power conferred in this article does not prevent a resort to any other lawful mode of obtaining partition of lands. (Code 1852, §2691; Code 1867, §3119; Code 1876, §3513; Code 1886, §3252; Code 1896, §3177; Code 1907, §5221; Code 1923, §9321; Code 1940, T. 47, §209.)

If, after a decree for partition and the appointment of commissioners it shall appear from the report of the commissioners, or on exceptions to their report, that a just and equal division of the land cannot be made, or that a sale will better promote the interest of all the cote…

Any property, real or personal, held by joint owners or tenants in common, on the written application of any one or more of them, may be decreed to be sold by the probate court of the county in which such property is situated, or, in case of land lying in different counties, of e…

Upon the filing of such application, setting forth that the property cannot be equitably divided or partitioned, without a sale thereof, a day must be appointed, not less than 30 days thereafter for hearing the same. (Code 1867, §3121; Code 1876, §3515; Code 1886, §3254; Code 189…

All parties in interest must have at least 10 days’ notice of the time and place set for the hearing of such application; and when infants or persons of unsound mind are parties, and have no general guardians, guardians ad litem must be appointed to represent them; and if any of …

Evidence in support of such application must be taken as in actions before the circuit court, and before granting the decree of sale the probate court must be satisfied from the evidence that an equitable division or partition cannot be made; and when the application is by the gu…

If, upon the hearing, the court is satisfied from the proof that such property cannot be equitably divided or partitioned among the parties in interest, it must decree the same to be sold, and make and issue all such orders as may be necessary to effect the sale thereof, and appo…

Such commissioner may discharge himself from all liability for money received by him for the property sold, by paying over the same to the judge of probate, after deducting therefrom the costs and expenses attending the sale, including commissions to him at the same rate that exe…

If the commissioner dies, resigns or neglects or refuses to act, at any time before the sale, another may be substituted in his stead by the court, who shall have the same power in completing the sale as if originally appointed. (Code 1886, §3259; Code 1896, §3184; Code 1907, §52…

Should any of the parties interested in property, real or personal, held by joint owners or tenants in common, die, the provisions of this article shall fully apply to his executor or administrator. (Code 1867, §3126; Code 1876, §3520; Code 1886, §3260; Code 1896, §3185; Code 190…

The provisions of this article are not applicable to the partition of crops. (Code 1886, §3261; Code 1896, §3186; Code 1907, §5230; Code 1923, §9330; Code 1940, T. 47, §218.)

Upon the filing of any petition for a sale for division of any property, real or personal, held by joint owners or tenants in common, the court shall provide for the purchase of the interests of the joint owners or tenants in common filing for the petition or any others named the…

In such circumstances as described in section 35-6-100, and in the event the parties cannot reach agreement as to the price, the value of the interest or interests to be sold shall be determined by one or more competent real estate appraisers or commissioners, as the court shall …

After the report of the appraisers or commissioners, the tenants in common or joint owners seeking to purchase the interests of those filing the petition shall have 30 days to pay into the court the price set as the value of those interests to be purchased. Upon such payment and …

Should the joint owners or tenants in common fail to pay the purchase price as provided in section 35-6-102, the court shall proceed according to its traditional practices in such cases as described in section 35-6-100. (Acts 1979, No. 79-334, p. 532, §4.)

The costs of the appraisers or commissioners shall be taxed as a part of the cost of court to those seeking to or purchasing the interests. (Acts 1979, No. 79-334, p. 532, §5.)

In all cases in which any person of unsound mind or any minor shall hold an interest as tenant in common with others in one or more parcels of land or realty in this state, and there shall be no valid authority to sell such interest vested in any person by the terms of any instru…

Within three months after making any such sale, such guardian shall report the same under oath to the court having jurisdiction of his administration of the estate of such ward. If the whole of the share of such ward in the proceeds of such sale shall have been paid when such rep…

Upon the filing of such report the court must appoint a day for the hearing of the same, not less than 20 days from the filing thereof, and must give notice thereof to any minor whose interest has been so sold who is over 14 years of age and resident in this state, and also to th…

The court must appoint a guardian ad litem to represent the interest of such ward upon such hearing, as provided by law for the appointment of guardians ad litem in such court. The person so appointed such guardian ad litem must deny in writing the allegations of such report and …

The person in whose custody such ward is must be cited, and the next of kin so cited may also appear at such hearing and contest the confirmation of such sale. (Code 1907, §5257; Code 1923, §9361; Code 1940, T. 47, §223.)

On the day appointed for such hearing, or on any other day to which it may be continued the court must proceed to hear such report and the evidence for and against the confirmation of such sale. Such evidence shall be taken orally in open court at the time of the hearing or by de…

Two or more sales of the interest of a ward in different parcels of land or realty made under the provisions of this article may be set forth by the guardian in one report, and be embraced in the hearing of such report and the order of the court made thereupon, the court dealing …

Within 30 days after receiving full payment for the interest of his ward in any land or realty so sold, such sale having been confirmed under the provisions of this article, the guardian of such ward must report such payment under oath to the court and apply for an order to make …

Every conveyance made under the provisions of this article shall, before delivery, be presented by the person making the same to the judge of the court ordering it to be made. If such judge is satisfied that such sale has been duly confirmed and that such conveyance is properly m…

(a) If, on the hearing of the report of sale by the guardian, it shall appear to the court that the sale of any parcel of land or realty therein set forth is not to the advantage of the ward whose interest is so sold, the court shall order such sale set aside, whereupon the same …

The authority conferred under the provisions of this article shall remain in the guardian in whom it is vested only so long as he continues as such; but his successor shall have the authority to consummate any sale made by him in accordance with such provisions. (Code 1907, §5263…

The provisions of this article shall not be exclusive of other modes, remedies, or proceedings for selling or partitioning the lands of minors or insane persons; but shall be construed to be cumulative or alternative remedies. (Code 1907, §5264; Code 1923, §9368; Code 1940, T. 47…