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Interests of

all parties

753. (§ 265.) The interests of all persons in the property, whether such persons be known or unknown, must be set must be set forth in the complaint specifically and complaint. 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 parties, be unknown to the plaintiff, or be uncertain or contingent, or the ownership of the inheritance depend upon an executory devise, or the remainder be a contingent remainder, so that such parties cannot be named, that fact must be set forth in the complaint.

ers not

754. (§ 266.) No person having a conveyance of Lienholdor claiming a lien on the property, or some part of it, of record need be made a party to the action, unless such con- be made veyance or. lien appear of record.

parties.

must file

notice of lis

pendens.

755. (§ 267.) Immediately after filing the com- Plaintiff plaint in the District Court, the plaintiff must file with the Recorder of the county, or of the several counties in which the property is situated, either a copy of such complaint or a notice of the pendency of the action, containing the names of the parties so far as known, the object of the action, and a description of the property to be affected thereby. From the time of the filing it shall be deemed notice to all persons.

756. (§ 268.) The summons must be directed to all the joint tenants and tenants in common, and all persons having any 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 claim any interest in the property.

Summons directed to interested

must be

all persons

in the property.

parties

may be

757. (§ 269.) If a party having a share or interest Unknown is unknown, or any one of the known parties reside out of the State, or cannot be found therein, and such

served by publication.

Answer of defendants, what to contain.

The rights

of all parties may be

in the action.

fact is made to appear by affidavit, the summons may be served on such absent or unknown party by publication, as in other cases. When publication is made, the summons, as published, must be accompanied by a brief description of the property which is the subject of the action.

758. (§ 270.) 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 defendants claim a lien on the property by mortgage, judgment, or otherwise, they must state the original amount and date of the same, and the sum remaining due thereon; also, whether the same has been secured in any other way or not; and if secured, the nature and extent of such security, or they are deemed to have waived their right to such lien.

759. (§ 271.) The rights of the several parties, plaintiff as well as defendant, may be put in issue, ascertained 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 made; and where service of the complaint has been made by publication, like proof must be required of the right of the absent or unknown parties before such judgment is rendered; except that where there are several unknown persons having an interest in the property, their rights may be considered together in the action, and not as between themselves.

Partial partition.

760. (§ 272.) Whenever from any cause it is, in the opinion of the Court, impracticable or highly inconvenient to make a complete partition, in the first in

stance, 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.

761. (§ 273.) If it appears to the Court, by the certificate 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 commencement 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 the last section, on each person having outstanding liens of record, who is not a party to the action, to

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The Court may order

a sale or partition and appoint referees therefor.

Partition must be made according to the rights of

as

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.

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 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.

764. ($276.) In making the partition, the referees must divide the property and allot the several portions thereof to the respective parties, quality and quantity the parties, 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.

mined by the Court.

Referees

must make

765. (§ 277.) The referees must make a report a report of of their proceedings, specifying therein the manner in which they executed their trust, and describing

their pro

ceedings.

the property divided, and the shares allotted to each party, with a particular description of each share.

may set

aside or

affirm

766. (§ 278.) The Court may confirm, change, The Court modify, or set aside the report, and, if necessary, appoint new referees. Upon the report being con- report, firmed, judgment must be rendered that such parti- thereon. tion be effectual forever, which judgment is binding

and conclusive:

and enter judgment

whom

to be

1. On all persons named as parties to the action, and Upon their legal representatives, who have at the time any judgment 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 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.

767. (§ 279.) The judgment does not affect ten- Judgment ants 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 employed, must be ascertained and allowed by the

not to affect
tenants for
years to
the whole
property.

Expenses must be

of partition

apportioned

among the

parties.

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