Title 21 — JUDICIAL REMEDIES

When several cotenants hold and are in possession of real 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 for a partiti…

In all partition proceedings including sales conducted before July 1, 1947 in the circuit courts of this state, in which any duly appointed, qualified and acting personal representative shall have appeared as a party plaintiff, or defendant, and the heirs or devisees therein were…

The defendants who have been served with process in the action, 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 defendants claim a lien on…

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 …

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 or the judge thereof, by a party thereto, interest must be allowed thereon from the time of making such disbursements. Source: CCivP 1877, § 596; CL …

Except as provided by § 21-45-28 , upon requisite proof being made, the court must order partition of the property in kind according to the respective rights of the parties, as ascertained by the court, and must designate the portion to remain undivided for the owners whose inter…

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 interest respectively held by the ori…

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, pursuant to the provisions of…

Before making partition or sale, the referees may, whenever it will be for the advantage of those interested, set apart a portion of the property for a way, road, or street, and the portion so set apart shall not be assigned to any of the parties or sold, but shall remain an open…

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 be ordered, the court may adjudge compensation to be made by one party to another, on a…

The conservator of any minor or protected person, who is interested in real property held in joint tenancy or in common or in any other manner so as to authorize his being made a party to an action for the partition thereof, may consent to partition without action and agree upon …

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. Source: CCivP 1877, § 561; CL 1887, § 537…

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 referees, must be apportioned among the diff…

The court may confirm, change, modify, or set aside the report, and if necessary, appoint new referees. Source: CCivP 1877, § 562; CL 1887, § 5376; RCCivP 1903, § 601; RC 1919, § 2812; SDC 1939 & Supp 1960, § 37.1416.

Upon the report being confirmed, judgment must be rendered that such partition be effectual forever, which judgment is binding and conclusive: (1) On all persons named as parties to the action, and their legal representatives, who have at the time any interest in the property div…

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 respectively entitled to share in the lands divided, in proportion to t…

The judgment of partition does not affect tenants for years less than ten, to the whole of the property which is the subject of the partition. Source: CCivP 1877, § 563; CL 1887, § 5377; RCCivP 1903, § 602; RC 1919, § 2813; SDC 1939 & Supp 1960, § 37.1417.

No judgment is invalidated by reason of the death of any party before final judgment or decree; but such judgment or decree is as conclusive against the heirs, legal representatives, or assigns of such decedent, as if it had been entered before his death. Source: CCivP 1877, § 56…

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 charged with its just proportion of the costs of the partition, in pref…

If it appear 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 to the owners, the court may order a sale thereof, for which purpose it may appoint one or more, but not exceeding three refere…

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. Source: CCivP 1877, § 566; CL 1887, § 5380; RCCivP 1903, § …

The summons in an action brought pursuant to § 21-45-1 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 …

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, except that the sale may be held at the site of the property when so ord…

In the order for sale the court may provide for a sale at the site of the property upon a showing that it would be advantageous to have the sale where the property is located, and shall also provide that the sale may not be confirmed should a higher and better bid, in an amount t…

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. The court must, in the order for sale, direct the terms of credit which may be allowed for the purchase money of any p…

None of the referees, nor any person for the benefit of any of them, can be interested in any purchase; nor can a conservator 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. All sales contrar…

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. Source: CCivP 1877, § 582; CL 1887, § 5396; RCCiv…

If the share of a minor is sold, the proceeds of the sale may be paid by the referee making the sale to his guardian, or the guardian ad litem appointed for him in the action, upon giving the security required by law, or directed by order of the court. Source: SDC 1939 & Supp 196…

The conservator of a minor or protected person whose interest in real property has been sold, may receive in behalf of such person his share of the proceeds of such real property from the referees, on executing, with sufficient sureties, an undertaking, approved by a judge of 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 h…

The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase money, or 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 proceeds of sale and the securities taken by the referees, or any part thereof, must be distributed by them to the persons entitled thereto, wherever the court so directs. But in case no direction be given, all of such proceeds and securities must be paid into court, or depos…

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. Source: CCivP 1877, § 550; CL 1887, § 5364; RCCivP 1903, § 589; RC 1919, § 2800; SDC 1939 & Supp 1960, § …

When the security of the proceeds of the 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 clerk of courts of the county where the papers are filed, and his successors in office, who must ho…

Within ten days after the sale of the property, or any part thereof, ordered to be sold, a report thereof, duly verified by the person making the same, shall be filed in the office of the clerk of courts of the county in which the action is pending, and shall (1) Refer to the ord…

At any time within ten days after such return has been filed, any person interested may file exceptions thereto in writing, and no order confirming said sale shall be made until an order of the court has been made fixing a time and place for a hearing upon said report of sale and…

The making of a higher and better bid subsequent to said sale shall not operate as the filing of an exception to the report of sale. If a higher and better bid is made and filed at any time before the confirmation of sale, then the procedure shall be as prescribed by §

Such sale shall not be confirmed as to any property for which a higher and better bid in writing, equal to or exceeding the amount specified in the order of sale, shall have been filed, prior to or at the hearing upon the return of sale, and successive bids may be received at suc…

If no exceptions be filed to the report of sale, and such fact is made to appear by the certificate of the clerk of courts in whose office the same is filed, and no higher or better bid is filed with said clerk, which likewise is made to appear by the certificates of said clerk, …

The sale is confirmed and valid from the time of the order confirming it, and a certified copy of the order shall be recorded in the office of the register of deeds of the county wherein the property or some part thereof is situated. Source: SDC 1939, § 37.1437 as added by SL 194…

All sales of real property made pursuant to partition proceedings which were confirmed by an order or judgment of the court in which said sales were held prior to January 1, 1992, are hereby in all things legalized, cured, and validated as fully as if said sale and the partition …

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…

The order confirming a sale may also make provision directing and authorizing the disposition to be made of the proceeds of a sale. Source: CCivP 1877, § 581; CL 1887, § 5395; RCCivP 1903, § 620; RC 1919, § 2831; SDC 1939, § 37.1437; SL 1943, ch 137 , § 2; SL 1945, ch 161 , § 1; …

The summons must be served in the manner prescribed for service of summons in actions to determine adverse claims to real estate, and when the summons is served by publication, it must contain a description of the property. Source: CCivP 1877, § 553; CL 1887, § 5367; RCCivP 1903,…

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 ascertaine…

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 security to be exhausted before distribution of the proceeds of sale, or may order…

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 instead thereof, by an instrument in writing, filed w…

In all cases of sales, where 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 estate, and must direct such proportion of the …