Sec. 671. Parties to actions for partition. Where the main question is whether or not the lands are subject to partition, persons who only have an interest therein, in case they are partitioned, are proper parties. Craighead v. Pike,

N. J. Eq. (38 Atl. Rep. 296). In an action for partition between minor devisees, brought before the settlement of the testator's estate, their guardian and the executor of the estate are proper parties. Mo. Rev. Stat. 1889, §§ 7139, 7145, applied. Budde v. Rebenack, 137 Mo. 179 (38 S. W. Rep. 910). Mortgagees and judgment creditors are not necessary parties. Martin v. Martin, 95 Va. 26 (27 S. E. Rep. 810); Cheney v. Ricks, 168 Ill. 533 (48 N. E. Rep. 75). A railroad company having a right of way across lands involved in an action for partition, need not be a party to the suit where neither the plaintiff nor defendant in such suit claim any right adverse to the right of way. Hooper v. McAllister, 115 Mich. 174 (73 N. W. Rep. 133). A husband is not a necessary party where his wife is a defendant, Estes v. Nell, 140 Mo. 639 (41 S. W. Rep. 940); and upon an elaborate discussion of the statutory provisions of Indiana as to the inchoate rights of a wife in the lands of her husband, it is held that the wife of a cotenant is not a necessary party to a proceeding to partition the land, although the effect of the partition sale thereunder, is to extinguish her interest in the land. Ind. Rev. Stat. 1894, §§ 2652, 2660, construed and applied. Jordan, J., dissenting. Haggerty v. Wagner, 148 Ind. 625 (48 N. E. Rep. 366; 39 L. R. A. 384).

Sec. 672. Practice in actions for partition-Miscellaneous notes. A proceeding instituted by petition in which all the joint owners of property unite stating their respective interests; that it was not susceptible of division in kind so as to make an equitable partition; that it was advisable and necessary that a partition of same "should be made between the said parties in interest;" and which concludes with a prayer for general relief, constitutes a partition suit. Moore v. Blagge, 91 Tex. 151 (38 S. W. Rep. 979). Where lands are incapable of exact or fair division, the court has power to compensate the inequality by a charge upon one portion by way of rent, servitude or easement. Martin v. Martin, 95

Va. 26 (27 S. E. Rep. 810). If necessary or desirable to a just division, a right of way may be given to one cotenant over the share assigned to another. Merrill v. Durrell, 67 N. H. 108 (36 Atl. Rep. 613). Citing, Cheswell v. Chapman, 38 N. H. 14 (75 Am. Dec. 158). Where land was conveyed to two persons by a county, in pursuance of a contract made by it with them, by which the land was to be conveyed in consideration of certain services, upon partition, their rights should be determined by the contract by which they acquired title, in the absence of any new agreement between them. Schuster v. Gamble, 103 Ia. 495 (72 N. W. Rep. 680). Where partition is sought of several separate parcels upon which separate mortgages have been executed to different mortgagees, the decree should treat the lands in the respective mortgages as distinct parcels and order partition of each parcel to be made between the owners thereof. Cheney v. Ricks, 168 Ill. 533 (48 N. E. Rep. 75). One excepting to a report of commissioners on the ground that the partition is unequal as to quality and quantity, must specifically point out the inequality. Martin v. Martin, 95 Va. 26 (27 S. E. Rep. 810). A decree ordering the sale for partition and the execution of deeds by the officer, is not void because no provision is made for report of sale and confirmation by the court. Moore v. Blagge, 91 Tex. 151 (38 S. W. Rep. 979). Where a parol partition between coparceners is relied on as a defense to a bill filed by one of the parceners or his or her heirs for partition, the burden of proof is on those setting it up to show that such partition was made, and it is not sufficient to show simply the fact that it was made; but the burden of proof is not lifted until it is shown to whom the several lots were assigned. Brooks v. Hubble, Va. (27 S. E. Rep. 585). Evidence as to the drainage of a plantation, the location of ditches and fences which goes to show its character as to its divisibility in kind, is receivable. Soniat v. Supple, 49 L. A. 41 (21 So. Rep. 165). For cases determining particular questions of evidence, see Davis v. Pacific Imp. Co., 118 Cal. 45 (50 Pac. Rep. 7); Sullivan v. Lumsden, 118 Cal. 664 (50 Pac. Rep. 777).

Applying a statute of Missouri, it is held that a decree confirming a report of commissioners in partition, will not be

set aside because they exempt from partition one-sixteenth of an acre of a farm of 140 acres which has been used as a family burying ground, and set it off to all the heirs, declaring that it shall continue to be a family burying ground. Eddie v. Eddie, 138 Mo. 599 (39 S. W. Rep. 451). A decree con firming a report of referees will be set aside where they have inadvertently partitioned a piece of land not described or referred to in the complaint or in the findings or interlocutory judgment, and which was then owned and in the adverse possession of one not a party to the suit. Sullivan v. Lnmsden, 118 Cal. 664 (50 Pac. Rep. 777). A court having power to set aside a decree in partition on account of the fraud of some of the parties thereto, a defendant who was not a party to the fraud cannot object to the vacation of the decree simply because it will deprive her of an adjudication as to her right of heirship. Furman v. Furman, 153 N. Y. 309 (47 N. E. Rep. 577; 60 Am. St. Rep. 629).

Cal. Prac. Act., § 308, construed and applied-judgment for costs. Lacoste v. Eastland, 117 Cal. 673 (49 Pac. Rep. 1046). McClain's Ia. Code, § 4517, 4531, construed and applied-taxation of costs. Finch v. Garrett, 102 Ia. 381 (71 N. W. Rep. 429). Iowa Code, § 3277, construed and applied―adjustment of lien claims on the property by one cotenant and claims for rent against one cotenant occupying the property. Wilcke v. Wilcke, 102 Ia. 173 (71 N. W. Rep. 201). Mo. Rev. Stat. 1889, § 7140, applied-action for partition by minors-appointment of guardian by court. Chrisman v. Divinia, 141 Mo. 122 (41 S. W. Rep. 920). Under Mo. Rev. Stat. 1889, § 7146, where defendants fail to ask partition among themselves, the court may set off their shares together in one parcel. Eddie v. Eddie, 138 Mo. 599 (39 S. W. Rep. 451).

Sec. 673. Procedure upon death of party-Power of court. Where a cotenant defendant dies pending a suit for partition it is necessary that the heir or devisee of such cotenant be made a party defendant before proceeding with the partition, and the executor of such deceased cotenant is not a proper party to represent the heir or devisee where it is not shown by the will that such executor is invested

with, and authorized to represent, the title. Nelson v. Haisley, 39 Fla. 145 (22 So. Rep. 265). Where a defendant dies after the trial of the cause but before the rendition of the decree, the decree may be entered nunc pro tunc and the rights of the claimants of his interest may be settled on petition for distribution, or such claimants may be brought in by petition to revive and their rights determined before the decree. Molineux v. Raynolds, 55 N. J. Eq. 187 (36 Atl. Rep. 276). Where, pending an action between tenants in common for partition of lands which can only be effected by a sale thereof, it appears that there is an unsettled administration of a deceased cotenant's estate pending in the probate court, and that there are conflicting claims between the cotenants as to who is entitled to receive his interest, the court having jurisdiction of the partition action, may determine all the interests of the cotenants except only the issues between contesting claimants, in the probate court, of the interest of the deceased cotenant, and the premises may be sold to effect a just division, the decree of sale leaving the rights of the contesting claimants to be determined in a court having jurisdiction thereof. Grant v. Murphy, 116 Cal. 427 (48 Pac. Rep. 481; 58 Am. St. Rep. 188).

Sec. 674. Decree of partition between defaulted defendants. Construing Ind. Rev. Stat. 1894, §§ 1200, 1203, 1207, providing that "any person holding lands as joint tenant or tenant in common * * * may compel partition in the manner provided by this act," and by application to the circuit court" by petition setting forth a description of the premises and the title therein of the parties interested;" and "if upon the trial of any issue, or upon default, or by consent of parties, it shall appear that partition ought to be made, the court shall award an interlocutory judgment that partition be made to parties who may desire the same, specifying therein the share assigned to each, and taking into consideration advancements to heirs of a person dying intestate; and the residue of the premises shall remain for the persons entitled thereto, subject to a future partition," it is held that a decree determining the interests of defaulted defendants, alleged to be cotenants, making partition between them, made without their

request, is not conclusive upon them, as between themselves. Howard, C. J., and McCabe, J., dissenting. Findley v. Cathcart, 149 Ind. 470 (48 N. E. Rep. 586; 63 Am. St. Rep. 292).

Sec. 675. Payment of owelty-Lien for. A lien for owelty of partition partakes of the nature of the vendor's lien, and constitutes a prior incumbrance upon the land on which it is charged, and follows the land into whosesoever hands it may come. The lien is not released by taking the personal obligation of another or other security for its payment, nor is it merged by a judgment or decree therefor, but subsists until it is clearly shown to have been waived or released, or has been satisfied. Jameson v. Rixey, 94 Va. 342 (26 S. E. Rep. 861; 64 Am. St. Rep. 726). Pa. Pub. Laws 1876, p. 140, construed and applied-payment of owelty-allowance of interest. In re Meyers' Estate, 179 Pa. St. 157 (36 Atl. Rep. 239).

Sec. 676. Allowance of attorney's fees. The allowance of a claim for attorney's fees is not a motion within the meaning of Mo. Rev. Stat. 1889, § 2086, requiring motions to be filed one day before they are determined. Eddie v. Eddie, 138 Mo. 599 (39 S. W. Rep. 451). Under McClain's Ia. Code, § 4532, attorney's fees should not be taxed where there is a contest. Finch v. Garrett, 102 Ia. 381 (71 N. W. Rep. 429). Construing Montana Code Civ. Proc., § 1394, providing that "the costs of partition, including reasonable counsel fees expended by the plaintiff or either of the defendants for the common benefit, fees of referees or other disbursements, must be paid by the parties respectively entitled to share in the lands divided in proportion to their respective interests therein, and may be included and specified in the judgment," it is held that it is error for the court to limit an allowance to services performed after entry of judgment and decree, and compensation should be allowed for necessary professional services of counsel in conducting the proceedings in partition to a completion for the common benefit of all parties thereto. Murray v. Conlon, 19 Mont. 389 (48 Pac. Rep. 743).

In Illinois it is held that an allowance of attorney's fees to plaintiff's attorney, will not be sustained on appeal unless the evidence upon which it is based is preserved in the record.