Same. Judgment not to affect 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 irregu larity, 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 tentenants for ants for years less than ten to the whole of the property which is the subject of the partition. years to the whole property. Expenses of partition must be apportioned among the parties. 768. (§ 280.) 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 different parties to the action, equitably. on an interest of any party a charge the share 769. (§ 281.) When a lien is on an undivided Alien interest or estate of any of the parties, such lien, if a undivided partition be made, shall thenceforth be a charge only is 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 assigned to such party. Estate for years may life or be set off part 770. (§ 282.) 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 sold. 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: 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 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. in a property when not all sold. Applicaproceeds tion of of sale of incumbered property. holding other 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, 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. Proceeds of sale, dispo sition of. When paid into Court the cause may be continued for the determina tion of the claims of the parties. Sales by referees public auction. 773. (§ 285.) 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, whenever the Court so directs. But in case no direction be given, all of such proceeds and securities must be paid into Court, or deposited therein, or as directed by the Court. 774. (§ 286.) 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 ascertained and adjudged by the Court. Further testimony may be taken in Court, or by a referee, at the discretion of the Court, and the Court may, if necessary, require such parties to present the facts or law in controversy, by pleadings, as in an original action. 775. (§ 287.) All sales of real property, made by must be at referees, under this Chapter, must be made at publie auction to the highest bidder, upon notice published in the manner required for the sale of real property on execution. The notice must state the terms of sale, and if the property or any part of it is to be sold subject to a prior estate, charge, or lien, that must be stated in the notice. The Court must direct the terms of sale or credit. 776. (§ 288.) The Court must, in the order for sale, direct the terms of credit which may be allowed for the purchase money of any portion of the premises of which it may direct a sale on credit, and for that portion of which the purchase money is required, by the provisions hereinafter contained, to be invested for the benefit of unknown owners, infants, or parties out of the State. may take for purchase 777. (§ 289.) The referees may take separate Referees mortgages and other securities for the whole, or con- securities venient portions of the purchase money, of such parts money. 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 for the shares of an infant, in the name of the guardian of such infant; and for other shares, in the name of the Clerk of the County and his successors in office. whose estate has been sold shall receive compensa 778. (§ 290.) The person entitled to a tenancy Tenants 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 tion. so entitled may consent to accept instead thereof, by an instrument in writing, filed with the Clerk of the Court. Upon the filing of such consent, the Clerk must enter the same in the minutes of the Court. 779. (§ 291.) If such consent be not given, filed, and entered as provided in the last section, at or before a judgment of sale is rendered, the Court must ascertain and determine what proportion of the proceeds of the sale, after deducting expenses, will be a just and reasonable sum to be allowed on account of such estate, and must order the same to be paid to such party, or deposited in Court for him, as the case may require. The Court may fix such com pensation. must tenants 780. (§ 292.) If the persons entitled to such The Court estate for life or years be unknown, the Court must protect provide for the protection of their rights in the same unknown. manner, as far as may be, as if they were known and had appeared. The Court must ascertain and secure 781. (§ 293.) In all cases of sales, when it appears that any person has a vested or contingent future right or estate in any of the property sold, the Court must contingent th of future 86-VOL. I. or vested interests. Terms of sale must be made known at ascertain and settle the proportional value of such contingent or vested right or estate, and must direct such proportion of the proceeds of the sale to be invested, secured, or paid over, in such manner as to protect the rights and interests of the parties. 782. (§ 294.) In all cases of sales of property the terms must be made known at the time; and if the Lots must premises consist of distinct farms or lots, they must be sold separately. the time. be sold separately. Who may not be 783. (§ 295.) Neither of the referees, nor any purchasers. person for the benefit of either of them, can be interested in any purchase; nor can a guardian of an infant party be interested in the purchase of any real property, being the subject of the action, except for the benefit of the infant. All sales contrary to the provisions of this section are void. Referees must make the sale to the Court. 784. (§ 296.) After completing a sale of the a report of property, or any part thereof ordered to be sold, the referees must report the same to the Court, with a description of the different parcels of land sold to each purchaser; the name of the purchaser; the price paid or secured; the terms and conditions of the sale, and the securities, if any, taken. The report must be filed in the office of the Clerk of the county where the property is situated. If confirmed, conveyances may be executed. if a 785. (§ 297.) If the sale be confirmed by the Court an order must be entered, directing the referees to execute conveyances and take securities pursuant to such sale, which they are hereby authorized to do. Such order may also give directions to them respecting the disposition of the proceeds of the sale. Proceeding 786. (§ 298.) When a party entitled to a share lienholder of the property, or an incumbrancer entitled to have purchaser. his lien paid out of the sale, becomes a purchaser, the become a |
