Title 70, Title 70

(1) The plaintiff may make a tenant in dower, for life or for years, of the entire property or a creditor or other person having a lien or interest that attaches to the entire property a defendant in the action. In that case the final judgment may either award to a party the part…

No person having a conveyance of or claiming a lien on the property or some part of it need be made a party to the action unless such conveyance or lien appear of record.

If it appears to the court, by the certificate of the clerk of the court and county clerk and recorder 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 record upon such real prop…

(1) The plaintiff shall cause a notice to be served a reasonable time prior to the day for appearance before the referee appointed, as provided in 70-29-107, on each person having outstanding liens of record who is not a party to the action to appear before the referee at a speci…

(1) Immediately after filing the complaint in the district court, the plaintiff must file in the office of the county clerk and recorder of the county or of the several counties in which the property is situated a notice of the pendency of the action containing: (a) the names of …

The summons must be directed to all the joint tenants and tenants in common and all persons having an interest in or any liens of record by mortgage, judgment, or otherwise upon the property or upon any particular portion thereof and generally to all persons unknown who have or c…

(1) If a party having a share or interest is unknown or any one of the known parties resides 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 publication, as in other cases. (2) …

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 property, and if such…

(1) If during the pendency of the action a party dies, is committed pursuant to 53-21-127, or otherwise becomes incompetent, the proceedings may not for that cause be delayed or suspended, but the attorney who has appeared for the party may continue to represent the party's inter…

The right of the several parties, plaintiff as well as defendant, may be put in issue, tried, and determined in the partition action. 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 an…

(1) 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 is so situated that the partition cannot be made without great prejudice to th…

When a sale of the premises is necessary, the title must be ascertained by proof to the satisfaction of the court before the judgment of sale can be made, and where service of the summons has been made by publication, like proof must be required of the right of the absent or unkn…

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 respectively held by the origin…

(1) In making 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, pursuant to the provisions of…

When the site of an incorporated city or town is included within the exterior boundaries of the property to be partitioned, on said fact being established by evidence, the following proceedings shall be had: (1) The court shall thereupon direct the referees to survey and appraise…

In all cases the court shall direct the referees, in making partition of land, to allot the share of each of the parties owning an interest in the whole or in any part of the premises sought to be partitioned and to locate the share of each cotenant so as to embrace as far as pra…

Whenever it appears in an action for the partition of lands that one or more of the tenants in common, being the owner of an undivided interest in the tract of land sought to be partitioned, has sold to another person a specific tract by metes and bounds out of the common land an…

(1) When it appears that a 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 is ordered, the court may adjudge compensation to be made by one party to another on ac…

The general guardian of a minor and the guardian entitled to the custody and management of the estate of a person committed pursuant to 53-21-127 or other person adjudged incapable of conducting the person's own affairs, who is interested in real estate held in joint tenancy or i…

The referees must make a report of their proceedings, specifying therein 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.

(1) The court may confirm, change, modify, or set aside the report and if necessary appoint new referees. (2) Upon the report being confirmed, judgment must be rendered that the partition is effectual forever. The judgment is binding and conclusive on all: (a) persons named as pa…

The judgment does not affect tenants for years, less than 10, to the whole of the property which is the subject of the partition.

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.

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 be first charged with its just proportion of the costs of the partition in prefe…

(1) 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 the abstract has been procured by the plaintiff or if the plaintiff has failed to have the abstract made before the commencement of the action and any …

The abstract mentioned in 70-29-216 may be made by any competent searcher of records and need not be certified by the county clerk and recorder or other officer, but instead of certification it must be verified by the affidavit of the person making it to the effect that the perso…

The costs of partition, including reasonable counsel fees, expended by the plaintiff or either of the defendants for the common benefit, fees of referees, or other disbursements must be paid by the parties respectively entitled to share in the lands divided, in proportion to thei…

The expenses of the referees, including those of a surveyor and the surveyor's assistants, when employed, must be ascertained and allowed by the court, and the amount of those expenses, together with the fees allowed by the court in its discretion to the referees, must be apporti…

Whenever during the progress of the action for partition any disbursements shall have been made under the direction of the court or the judge thereof by a party thereto, interest must be allowed thereon from the time of making such disbursements.

If it appears that other actions or proceedings have been necessarily prosecuted or defended by any one of the tenants in common for the protection, confirmation, or perfecting of the title or setting the boundaries or making a survey or surveys of the estate partitioned, the cou…

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 terms of sale, and if the property or any part o…

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

(1) 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 a minor party be interested in the purchase of any real property being the subject of the action except for the benefit of the minor. (2) All sale…

When a party entitled to a share of the property or an encumbrancer entitled to have a lien paid out of the sale becomes a purchaser, the referees may take the purchaser's receipt for as much of the proceeds of the sale as belongs to the purchaser.

The court must, in the order of 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 provisions herein contained to b…

The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase money of parts of the property that are directed by the court to be sold on credit for the: (1) shares of any known owner of full age, in the name of the owner; (2) …

When the security of the proceeds of sale is taken or when an investment of any proceeds is made, it must be done, except as otherwise provided in this part, in the name of the clerk of the court where the papers are filed and the clerk's successors in office, who shall hold the …

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 referees, agree upon the shares and proportions to which they are respectively entitled or when shares and proportions have…

(1) 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) a description of the different parcels of land sold to each purchaser; (b) the price paid or secured; (c) the terms and conditions of the s…

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 them respecting the disposition of the proceeds o…

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 and persons as were unknown, if the summons …

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) to satisfy and cancel of record the several liens in their or…

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 distribution of the proceeds of sale or may ord…

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 must be paid into the court or depos…

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 the court, the action may continue as between such parties for the determination of their respective claims thereto which must be ascertained an…

In all cases of sales when it appears that any person has a vested or contingent or future right or estate in any of the property sold, the court must ascertain and settle the proportional value of such contingent or vested right or estate and must direct such proportion of the p…