CHAPTER III.

Action for the partition of real property.

§ 114. When several persons hold, and are in possession f real property, as joint tenants, or as 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 partition thereof, according to the respective rights of the persons interested therein, and for a sale of such property, or of part of it, if it shall appear that a partition thereof cannot be made, without great prejudice to the owners.

§ 115. The summons shall be addressed by name to all joint tenants, and tenants in common, who are known, and whose interests are known, or uncertain, or contingent, or unknown, and generally to all persons unknown, having or claiming an interest in such premises.

§ 116. The interests, of all persons in the premises, whether known or unknown, shall be set forth in the complaint specifically and particularly, as far as known to the plaintiff, and if any such interest be unknown, that fact shall be also stated.

§ 117. If any one or more of such parties, or the share or quantity of interest of any of the parties, be unknown to the plaintiff, or be uncertain or contingent,

or the ownership of the inheritance depend upon executory devise, or the remainder be a contingent remainder, so that such parties can not be named, that fact shall be set forth in the complaint.

§ 118. The plaintiff may at his election, make creditors, having a specific or general lien upon the premises, or upon any particular lot or parcel thereof, parties to

action.

§ 119. When the 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 shall be first charged with its just proportion of the costs of the partition, in preference to any such lien.

§ 120. A sale of the premises charged with any such lien, shall not be ordered until the person having the lien shall be made a party, and have an opportunity to oppose the application for a sale. And in case of a sale, the share of the proceeds, to which each party interested is entitled, shall, after contributing its proportion towards the cost, be first applied to pay outstanding liens against the share of such party, in the order of their priority.

§ 121. If a party having a share or interest be unknown, or either of the known parties reside out of the state, or cannot be found therein, and such fact be made to appear by affidavit, the summons may be served on

such absent or unknown party, by publication, directed by the court or judge, in the manner prescribed by section 114, of the code of procedure. When publication is made, the summons, as published, shall be accompanied by a brief description of the premises, which are the subject of the action.

§ 122. The rights of the several parties, plaintiffs as well as defendants, may be put in issue, tried, and determined by such action, and where any defendant shall fail to answer, or where a sale of the premises shall be necessary, the title shall be ascertained by proof to the satisfaction of the court, before judgment for partition or sale shall be given.

§ 123. When an order for partition is made, the court shall appoint three commissioners, to make the partition according to the respective rights and interests of the parties, as the same were ascertained and determined by the court; and shall designate the proportion or shares which shall remain undivided, for the owners, whose interests shall remain unknown and not ascertained.

§ 124. If the commissioners, or any of them, shall die, resign, or neglect to serve, the court may from time to time, appoint others in their places.

§ 125. The commissioners, before proceeding to the execution of their duty, shall severally be sworn honestly and impartially to execute the trust reposed in them, and to make partition as directed by the court; which

oath shall be filed with the clerk of the court, at, or before the report of the commissioners.

§ 126. The commissioners shall forthwith proceed to make partition, according to the judgment of the court, unless it appear to them, that partition cannot be made, without great prejudice to the owners, in which case, they shall return that fact to the court in writing under their hands.

§ 127. In making partition, the commissioners shall divide such real property, and allot the several portions and shares thereof to the respective parties, quality and quantity relatively considered according to the respective rights and interests of the parties, as determined by the court, designating the several shares and portions by proper landmarks, and may employ a surveyor with the necessary assistants to aid him therein.

§ 128. The commissioners shall make report of their proceedings, specifying therein the manner of executing their trust, and describing the property divided, and the shares allotted to each party, with a particular description of each share, and the items of the charges and fees.

§ 129. All the commissioners must meet together in the performance of their duties; but the acts of a majority so met shall be valid.

§ 130. The expenses of the commissioners, including those of a surveyor and his assistants, when employed, shall be ascertained and allowed by the court; and the amount thereof, together with the fees allowed by law to the commissioners, shall be paid by the plaintiff, and shall be allowed as part of the costs.

§ 131. The report shall be proved or acknowledged, before an officer authorised to take the proof of deeds in the same manner in which deeds are required to be proved or acknowledged to entitle them to be recorded and shall be filed in the office of the clerk of the court.

§ 132. On good cause shown, the court may set aside the report, and as often as may be necessary, appoint new commissioners, who shall proceed in like manner as above directed.

§ 133. Upon the report of the commissioners being confirmed by the court, judgment shall be rendered, that such partition be effectual forever, which judgment shall be binding and conclusive.

1. On all parties named therein, and their legal representatives, who shall at the time have any interest in the premises divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder or inheritance of such premises, after the termination of any particular estate therein; or who, by any contingency may be, or may become, entitled to a beneficial interest in the premises; or who shall have an interest