of all may be in the tried, and determined in such action; and when a sale The rights NOTE.-See note to Sec. 753, ante; Morenhout vs. partition. 760. (§ 272.) Whenever from any cause it is, in Partial 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 original co-tenants, and thereupon adjudge and cause a partition to be made, as if such original co-tenants were the parties, and sole parties, in interest, and the only parties to the action, and thereafter may proceed in like manner to adjudge and make partition separately of each share or portion so ascertained and allotted as between those claiming under the original tenant to whom the same shall have been so set apart, or may allow them to remain tenants in common thereof, as they may desire. ers must be made refereba their parties, or a appointed to ascertain 761. (§ 273.) If it appears to the Court, by the Lienholdcertificate of the County Recorder or County 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 incumbrances of record upon such real property, or any part or portion thereof, which existed and were of record at the time of the com rights. Same. Lienholders must be notified to appear before the referee mencement of the action, and the persons holding such liens are not made parties to the action, the Court must either order such persons to be made parties to the action, by an amendment or supplemental complaint, or appoint a referee to ascertain whether or not such liens or incumbrances have been paid, or if not paid, what amount remains due thereon, and their order among the liens or incumbrances severally held by such persons and the parties to the action, and whether the amount remaining due thereon has been secured in any manner, and if secured, the nature and extent of the security. 762. (§ 274.) 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 appointed. the last section, on each person having outstanding liens of record, who is not a party to the action, to appear before the referee at a specified time and place, to make proof, by his own affidavit or otherwise, of the amount due, or to become due, contingently or absolutely thereon. In case such person be absent, or his residence be unknown, service may be made by publication or notice to his agents, under the direction. of the Court, in such manner as may be proper. The report of the referee thereon must be made to the Court, and must be confirmed, modified, or set aside, and a new reference ordered, as the justice of the case may require. The Court may order a sale or partition and appoint referees therefor. 763. (§ 275.) 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 cannot be made without great prejudice to the owners, the Court may order a sale thereof. Otherwise, upon the requisite proofs being made, it must order a partition, according Amended 1875-6. to the respective rights of the parties, as ascertained by the Court, and appoint three referees therefor; and must designate the portion to remain undivided for the owners whose interests remain unknown, or are not ascertained. NOTE.-See Subd. 3 of note to Sec. 752, ante. + must be made 764. (§ 276.) In making the partition, the referees Partition 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 this Chapter, designating the several portions by proper landmarks, and may employ a surveyor, with the necessary assistants, to aid them. NOTE.-See Subd. 2 of note to Sec. 752, ante. mined by the Court. must make their pro 765. (§ 277.) The referees must make a report Referees, of their proceedings, specifying therein the manner a report of in which they executed their trust, and describing ceedings. the property divided, and the shares allotted to each party, with a particular description of each share. may set report, 766. (§ 278.) The Court may confirm, change, The Court modify, or set aside the report, and, if necessary, a appoint new referees. Upon the report being con- and enter firmed, judgment must be rendered that such parti- thereon. tion be effectual forever, which judgment is binding and conclusive: judgment whom judgment to be 1. On all persons named as parties to the action, and Upon their legal representatives, who have at the time any judg interest in the property divided, or any part thereof, conclusive. as owners in fee or as tenants for life or for years, or as entitled to the reversion, remainder, or the inheritance of such property, or of any part thereof, after the determination of a particular estate therein, and who by any contingency may be entitled to a beneficial interest in the property, or who have an interest Same. Judgment not to affect tenants for years to the whole property. Expenses of partition must bo in any undivided share thereof, as tenants for years or for life. 2. On all persons interested in the property, who may be unknown, to whom notice has been given of the action for partition by publication; 3. On all other persons claiming from such parties or persons, or either of them. And 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. NOTE.-The effect of the judgment in this action is determined by the Code, not by the common law. It is binding and conclusive upon all parties properly before the Court.-Morenhout vs. Higuera, 32 Cal., p. 289; see, also, Gates vs. Salmon, 35 Cal., p. 576. In Tormey vs. Allen, Oct. Term, 1872, the Supreme Court say: "We held in Regan vs. McMahon, April Term, 1872, that the practice prescribed in the Practice Act as to the granting of new trials in civil actions was applicable to the review of decrees rendered in proceedings on partition. Sec. 193 defines the grounds upon which, and Sec. 195 the procedure by which, such motions may be made and determined, and there is hardly a conceivable case in which, under the provisions of the Act, relief may not be had, if irregularity, accident, or surprise, or any other misfortune by which the substantial rights of the parties or of any of them have been sacrificed, have intervened. An action for a partition is as completely within the operation of the Act as any other civil action for the conduct of which rules of procedure are therein prescribed." 767. (§ 279.) The judgment does not affect tenants for years less than ten to the whole of the property which is the subject of the partition. 768. (§ 280.) The expenses of the referees, including those of a surveyor and his assistants, when tioned the employed, must be ascertained and allowed by the appor among parties. Court, and the amount thereof, together with the fees allowed by the Court, in its discretion, to the referees, must be apportioned among the different parties to the action, equitably. on an interest of any party is a charge 769. (§ 281.) When a lien is on an undivided A lien interest or estate of any of the parties, such lien, if a undivided 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 preference to such lien. only on the share assigned to such party. life or years may be set off part 770. (§ 282.) When a part of the property only Estate for 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. 771. (§ 283.) The proceeds of the sale of incumbered property must be applied under the direction of the Court, as follows: in ana not sold, property when not all sold. Applicaproceeds tion of of sale of incumbered 1. To pay its just proportion of the general costs of property. the action; 2. To pay the costs of the reference; 3. To satisfy and cancel of record the several liens in their order of priority, by payment of the sums due and to become due; the amount due to be verified by affidavit at the time of payment; 4. The residue among the owners of the property sold, according to their respective shares therein. holding securities may be exhaust required first to 772. (§ 284.) Whenever any party to an action, Party who holds a lien upon the property, or any part thereof, other 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 order a just deduction to be made from the amount of the lien on the property, on account thereof. them. |