Title 6, ACTIONS IN PARTICULAR CASES

6-501. When partition may be had. When several cotenants hold and are in possession of real property as parceners, joint tenants or tenants in common, in which one (1) or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by o…

6-502. Complaint — Allegations of interests of parties. The interests of all persons in the property, whether such persons be known or unknown, must be set forth in the complaint specifically and particularly as far as known to the plaintiff; and if one (1) or more of the parties…

6-503. Parties — Lienholders and purchasers of record. No person having a conveyance of, or claiming a lien on, the property, or of some part of it, need be made a party to the action, unless such conveyance or lien appear of record.

6-504. Lis pendens — Filing and effect. Immediately after filing the complaint in the district court the plaintiff must file with the recorder of the county, or of the several counties in which the property is situated, either a copy of such complaint or a notice of the pendency …

6-505. Summons — How directed. The summons must be directed to all the joint tenants and tenants in common, and all persons having any interest in, or any liens of record by mortgage, judgment, or otherwise upon the property, or upon any particular portion thereof; and generally,…

6-506. Service by publication. If a party having a share or interest is unknown, or any one of the known parties reside out of the state, or cannot be found therein, and such fact is made to appear by affidavit, the summons may be served on such absent or unknown party by publica…

6-507. Answer. The defendants who have been personally served with the summons and a copy of the complaint, or who have appeared without such service, must set forth in their answers fully and particularly, the origin, nature and extent of their respective interests in the proper…

6-508. Rights of all parties may be determined. The rights of the several parties, plaintiff as well as defendant, may be put in issue, tried and determined in such action; and when a sale of the premises is necessary, the title must be ascertained by proof to the satisfaction of…

6-509. Partial partition. Whenever from any cause it is, in the opinion of the court, impracticable or highly inconvenient to make a complete partition in the first instance among all the parties in interest, the court may first ascertain and determine the shares or interests res…

6-510. Lienholders — Determination of rights. If it appears to the court, by the certificate of the county recorder or clerk, or by the sworn or verified statement of any person who may have examined or searched the records, that there are outstanding liens or encumbrances of rec…

6-511. Notice to lienholders. The plaintiff must cause a notice to be served a reasonable time previous to the day for appearance before the referee appointed as provided in the last section, on each person having outstanding liens of record who is not a party to the action, to a…

6-512. Partition — Sale — Referees. If it be alleged in the complaint and established by evidence, or if it appear by the evidence without such allegation in the complaint, to the satisfaction of the court, that the property, or any part of it, is so situated that partition canno…

6-513. Duties of referees. In making the partition the referees must divide the property and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties as determined by the court, pur…

6-514. Report of referees. The referees must make a report of their proceedings, specifying the manner in which they executed their trust, and describing the property divided, and the shares allotted to each party, with a particular description of each share.

6-515. Report of referees — Confirmation — Judgment. The court may confirm, change, modify or set aside the report, and if necessary appoint new referees. Upon the report being confirmed, judgment must be rendered that such partition be effectual forever, which judgment is bindin…

6-516. Effect of judgment on tenants for years. The judgment does not affect tenants for years less than ten (10) to the whole of the property which is the subject of the partition.

6-517. Allowance of expenses of referees. The expenses of the referees, including those of a surveyor and his assistants when employed, must be ascertained and allowed by the court, and the amount thereof, together with the fees allowed by the court, in its discretion, to the ref…

6-518. Lien on undivided interest — Charge on share assigned to lienor. When a lien is on an undivided interest or estate of any of the parties, such lien, if a partition be made, shall thenceforth be a charge only on the share assigned to such party; but such share must first be…

6-519. Estate for life or years may be set off. When a part of the property only is ordered to be sold, if there be an estate for life or years in an undivided share of the whole property, such estate may be set off in any part of the property not ordered to be sold.

6-520. Application of proceeds of sale of encumbered property. The proceeds of the sale of encumbered property must be applied under the direction of the court as follows: 1. To pay its just proportion of the general costs of the action. 2. To pay the costs of the reference. 3. T…

6-521. Resort to other securities compelled. Whenever any party to an action who holds a lien upon the property, or any part thereof, has other securities for the payment of the amount of such lien, the court may, in its discretion, order such securities to be exhausted before a …

6-522. Distribution of proceeds. The proceeds of sale and the securities taken by the referees, or any part thereof, must be distributed by them to the persons entitled thereto, whenever the court so directs. But in case no direction be given, all of such proceeds and securities …

6-523. Payment into court — Continuance of action. When the proceeds of the sale of any share or parcel belonging to persons who are parties to the action, and who are known, are paid into court, the action may be continued as between such parties for the determination of their r…

6-524. Conduct of sale — Contents of notice. All sales of real property made by referees under this chapter must be made at public auction to the highest bidder, upon notice published in the manner required for the sale of real property on execution. The notice must state the ter…

6-525. Terms of sale. The court must, in the order for sale, direct the terms of credit which may be allowed for the purchase-money of any portion of the premises of which it may direct a sale on credit, and for that portion of which the purchase-money is required by the provisio…

6-526. Security for purchase-money. The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase-money of such parts of the property as are directed by the court to be sold on credit for the shares of any known owner of full a…

6-527. Compensation of tenants for life or years. The person entitled to a tenancy for life or years, whose estate has been sold, is entitled to receive such sum as may be deemed a reasonable satisfaction for such estate, and which the person so entitled may consent to accept ins…

6-528. Consent not given — Compensation fixed by court. If such consent be not given, filed and entered as provided in the last section, at or before a judgment of sale is rendered, the court must ascertain and determine what proportion of the proceeds of the sale, after deductin…

6-529. Protection of unknown parties. If the persons entitled to such estate for life or years be unknown, the court must provide for the protection of their rights in the same manner, as far as may be, as if they were known and had appeared.

6-530. Compensation for contingent interest. In all cases of sales when it appears that any person has a vested or contingent future right or estate in any of the property sold, the court must ascertain and settle the proportionate value of such contingent or vested right or esta…

6-531. Notice of terms of sale. In all cases of sales of property the terms must be made known at the time; and if the premises consist of distinct farms or lots, they must be sold separately.

6-532. Purchase by referees and guardians prohibited. Neither of the referees, nor any person for the benefit of either of them, can be interested in any purchase; nor can a guardian of an infant party be interested in the purchase of any real property being the subject of the ac…

6-533. Report of sale. After completing a sale of the property, or any part thereof ordered to be sold, the referees must report the same to the court with a description of the different parcels of lands sold to each purchaser; the name of the purchaser; the price paid or secured…

6-534. Confirmation and order for conveyance. If the sale be confirmed by the court, an order must be entered directing the referees to execute conveyances and take securities pursuant to such sale, which they are hereby authorized to do. Such order may also give directions to th…

6-535. Lienholders as purchasers. When a party entitled to a share of the property, or an encumbrancer entitled to have his lien paid out of the sale, becomes a purchaser, the referees may take his receipt for so much of the proceeds of the sale as belongs to him.

6-536. Record and effect of conveyance. The conveyances must be recorded in the county where the premises are situated, and shall be a bar against all persons interested in the property in any way, who shall have been named as parties in the action, and against all such parties a…

6-537. Investment of proceeds belonging to unknowns or nonresidents. When there are proceeds of sale belonging to an unknown owner, or to a person without the state, who has no legal representative within it, the same must be invested in securities at interest for the benefit of …

6-538. Investment — When made in recorder’s name. When the security of the proceeds of sale is taken, or when an investment of any such proceeds is made, it must be done, except as herein otherwise provided, in the name of the recorder of the county where the papers are filed, an…

6-539. Investment — When made in parties’ names. When security is taken by the referees on a sale, and the parties interested in such security, by an instrument in writing, under their hands, delivered to the referee, agree upon the shares and proportions to which they are respec…

6-540. Duty of recorder taking security or making investment. The recorder in whose name a security is taken, or by whom an investment is made, and his successors in office, must receive the interest and principal as it becomes due, and apply and invest the same as the court may …

6-541. Unequal partition — Compensation. When it appears that partition cannot be made equal between the parties, according to their respective rights, without prejudice to the rights and interests of some of them, and a partition be ordered, the court may adjudge compensation to…

6-542. Sale of infant’s share — Payment of proceeds to guardian. When the share of an infant is sold, the proceeds of the sale may be paid by the referee making the sale to his general guardian, or the special guardian appointed for him in the action.

6-543. Sale of share of incapacitated or protected person — Payment of proceeds to guardian. The guardian who may be entitled to the custody and management of the estate of an incapacitated or protected person whose interest in real property has been sold, may receive, in behalf …

6-544. Partition without action — Consent of guardian. The general guardian of an infant, and the guardian entitled to the custody and management of the estate of an incapacitated or protected person, or other person adjudged incapable of conducting his own affairs, who is intere…

6-545. Costs of partition — Apportionment to parties — Lien. The costs of partition, including reasonable counsel fees, expended by the plaintiff or either of the defendants for the common benefit, fees of referees, and other disbursements, must be paid by the parties respectivel…

6-546. Appointment of single referee. The court, with the consent of the parties, may appoint a single referee, instead of three (3) referees, in the proceedings under the provisions of this chapter, and the single referee, when thus appointed, has all the powers and may perform …

6-547. Cost of abstract of title. If it appears to the court that it was necessary to have made an abstract of the title to the property to be partitioned, and such abstract shall have been procured by the plaintiff, or if the plaintiff shall have failed to have the same made bef…