Title 32 — Judicial Remedies

When several cotenants hold and are in possession of real or personal property as partners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may be brought by one or more of such persons…

The interests of all persons in the property, whether such persons are known or unknown, must be set forth in the complaint specifically and particularly as far as known to the plaintiff, and if one or more of the parties, or the share or quantity of interest of any of the partie…

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 appears of record.

Immediately after filing the complaint in the district court, the plaintiff must record in the office of the recorder of the county, or of the several counties in which the property is situated, a notice of the pendency of the action, containing the names of the parties, so far a…

The summons must be directed to all the joint tenants and tenants in common and all persons having an interest in or any lien 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…

When service of the summons is made by publication, the summons as published must be accompanied by a notice that the object of the action is to obtain a partition of the property which is the subject of the action, briefly describing the same.

The defendants who have been served personally with the summons and a copy of the complaint, or who have appeared without such service, must set forth in their answer, fully and particularly, the origin, nature, and extent of their respective interests in the property, and if suc…

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 the court before the judgment of sale can be m…

Whenever from any cause in the opinion of the court it is impracticable or highly inconvenient to make a complete partition in the first instance among all the parties in interest, the court first may ascertain and determine the shares or interests respectively held by the origin…

If it appears to the court, by the certificate of the recorder, or the clerk of the district court, or by the verified statement of any person who may have examined or searched the records, that there are outstanding liens or encumbrances of record upon the real property, or any …

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 section 32-16-10, on each person having outstanding liens of record, who is not a party to the action, to appear before the referee at …

If it is alleged in the complaint and established by evidence, or if it appears 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 cannot be made without great prejudice t…

In making the partition, 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 thi…

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 share allotted to each party with a particular description of each share.

The court may confirm, change, modify, or set aside the report of the referees and, if necessary, may appoint new referees. Upon the confirmation of the report, judgment must be rendered that such partition be effectual forever, and such judgment shall be binding and conclusive: …

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

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 thereof, together with the fees allowed by the court in its discretion to the referees, must be apportioned among…

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

When a part of the property only is ordered to be sold, if there is 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.

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 order…

Whenever any party to an action who holds a lien upon the property, or any part thereof, has other security for the payment of the amount of such lien, the court in its discretion may order such security to be exhausted before distribution of the proceeds of sale, or may order a …

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. In case no direction is given, all of such proceeds and securities must be paid into court, or deposited…

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 respective claims thereto, which must be ascertained…

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 of…

The court, in the order for sale, must direct the terms of credit which may be allowed for the purchase money of any portion of the real property of which it may direct a sale on credit and for that portion of which the purchase money is required to be invested for the benefit of…

The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase money, on 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 age, in the name of such owner, and …

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 which the person so entitled may consent, by an instrument in writing filed with the clerk of the court, to a…

If such consent is not given, filed, and entered as provided in section 32-16-27 at or before a judgment of sale is rendered, the court must ascertain and determine what proportion of the proceeds of the sale, after deducting expenses, will be a just and reasonable sum to be allo…

If the person entitled to such estate for life or years is unknown, the court may provide for the protection of the person's rights in the same manner, as far as may be, as if the person was known and had appeared.

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 proportionate value of such contingent or vested right or estate and must direct such proportion of the…

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

No referee, nor any person for the benefit of any referee, can be interested in the purchase of any real property which is the subject of the action. Neither can any guardian or conservator of an infant party to such action be interested in the purchase of such property except fo…

After completing a sale of 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 land sold to each purchaser, the name of the purchaser, the price paid or secured, the terms and conditions…

If the sale is confirmed by the court, an order must be entered directing the referees to execute conveyances and take securities pursuant to such sale. Such order also may give directions to them respecting the disposition of the proceeds of sale.

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

The conveyance 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…

If there are proceeds of a sale belonging to an unknown owner or to a person without the state who has no legal representative within it, the proceeds must be invested in bonds of the United States for the benefit of the persons entitled thereto.

When security for the proceeds of a sale is taken, or when an investment of any proceeds is made, it must be done, except as herein otherwise provided, in the name of the clerk of the district court of the county where the papers are filed, and the clerk's successors in office, w…

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 respectively are entitled, or when shares and proportions pr…

The clerk of the district court in whose name a security is taken, or by whom an investment is made, and the clerk's successor in office, must receive the interest and principal as it becomes due and apply and invest the same as the court may direct, and must deposit with the cou…

When it appears that the 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 acc…

When the share of an infant is sold, the proceeds of the sale may be paid by the referees making the sale to the infant's guardian or conservator, if the infant has one, or as provided in section 30.1-26-03, or to the guardian ad litem appointed for the infant in the action, upon…

The guardian or conservator who may be entitled to the custody and management of the estate of an insane person, or other person adjudged incapable of conducting the person's own affairs, whose interest in real property has been sold, may receive in behalf of such person such per…

Repealed by S.L. 1973, ch. 257, § 82.

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

The court, with the consent of the parties or when the complaint petitions and prays for the appointment of a single referee and there is no objection thereto, may appoint a single referee instead of three referees in the proceeding under this chapter, and the single referee, whe…

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 before the commencement of the action…

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

Notwithstanding any other provision of law, if the court determines property subject to a partition action under section 32-16-01 is held by two or more cotenants in which one or more cotenants have an estate of inheritance, and a sale of the property is requested by one or more …