Real Property Actions & Proceedings

ARTICLE 9

ACTION FOR PARTITION
Section 901. By whom maintainable.
903. Necessary defendants.
904. Permissible defendants.
905. Complaint.
907. Trial of title or interest.
911. Ascertainment of rights of parties before interlocutory
judgment on default or admission or where party is an
infant, absentee or unknown defendant.
913. Inquiry as to creditors.
915. Interlocutory judgment.
916. Interlocutory judgment directing partial partition.
917. Interlocutory judgment directing partition in common.
918. Interlocutory judgment directing sale or exception of lien
or dower interest.
919. Interlocutory judgment directing credit on sale.
921. Actual partition.
922. Meeting of commissioners; report of actual partition;
confirming or setting aside report.
923. Security for credit on sale.
925. Report of sale; confirmation.
927. Contents of judgment after actual partition.
928. Effect of judgment after actual partition.
929. Lien of creditor upon share partitioned.
931. Contents of judgment after sale.
933. Effect of judgment after sale.
941. Judgment as to parties having interest in entire property.
943. Judgment directing compensation to equalize partition.
945. Judgment adjusting rents and profits.
947. Judgment affecting state tax claim.
951. Recording of judgment.
961. Disposition of proceeds of sale.
962. Payment of proceeds into court where there are liens.
963. Payment of proceeds out of court where there are liens.
964. Payment of proceeds into court in cases involving
decedent`s property.
965. Payment of proceeds out of court in cases involving
decedent`s property.
966. Payment of proceeds directly to parties in cases involving
decedent`s property.
967. Payment of proceeds to owner of particular or future
estate.
968. Manner of payment of proceeds to owner of particular or
future estate.
969. Shares of infant, incompetent or conservatee.
970. Shares of unknown or absent owner.
971. Security for refund.
973. Report of disposition of proceeds.
981. Costs and expenses.
991. Proceeding for share of unknown heirs; presumption of
death; service.
992. Judgment in proceeding for share of unknown heirs.

S 901. By whom maintainable. 1. A person holding and in possession of
real property as joint tenant or tenant in common, in which he has an
estate of inheritance, or for life, or for years, may maintain an action
for the partition of the property, and for a sale if it appears that a
partition cannot be made without great prejudice to the owners.
2. A person holding a future estate as defined in sections forty,
forty-a or forty-b of the real property law or a reversion as joint
tenant or tenant in common may maintain an action for the partition of
the real property to which it attaches, according to his respective
share, subject to the interest of the person holding the particular
estate, but no sale of the premises in such an action shall be made
except with the consent in writing, to be acknowledged or proved and
certified in like manner as a deed to be recorded, of the person owning
and holding such particular estate. If partition or sale cannot be made
without great prejudice to the owners, the complaint shall be dismissed;
dismissal shall not affect the right of any party to bring a new action
after the determination of such particular estate.
3. A person entitled as a joint tenant or a tenant in common by reason
of his being an heir of a person who died holding and in possession of
real property, may maintain an action for partition, whether he is in or
out of possession, notwithstanding an apparent devise to another by the
decedent, and possession under such a devise. The plaintiff shall
establish that the apparent devise is void.
4. In the event the estate of a decedent is the owner of an estate in
common in real property, the executor or administrator may bring a
partition action or intervene in a pending partition action on behalf of
the estate if, upon application duly made, the surrogate approves.

S 903. Necessary defendants. Each of the following persons shall be
made a party to the action:
1. Every person having an undivided share, in possession or otherwise,
in the property, as tenant in fee, for life, by the curtesy or for
years;
2. Every person entitled to the reversion, remainder or inheritance of
an undivided share, after the determination of a particular estate
therein;
3. Every person who, by any contingency, is or may become entitled to
a beneficial interest in an undivided share in the property, provided
that where a future estate or interest is limited in any contingency to
the persons who shall compose a certain class upon the happening of a
future event, it shall be sufficient to make parties to the action the
persons who would have been entitled to such estate or interest if such
event had happened immediately before the commencement of the action;
4. Every person having an inchoate right of dower in an undivided
share in the property;
5. Every person having a right of dower in the property, or any part
thereof, which has not been admeasured; and
6. An executor or administrator, where letters testamentary or of
administration have been issued on the estate of the decedent from whom
the plaintiff`s title to the real property is derived, and the action is
brought within eighteen months after such letters were issued; or where
the person of whose estate the executor or administrator has been
appointed should, if living, be a party to the action. If no executor or
administrator has been appointed for the estate of such a person, that
fact must be stated in the complaint.

S 904. Permissible defendants. The plaintiff, at his election, may
make defendant in the action:
1. A tenant by the curtesy or for life or for years, of the entire
property, or whoever may be entitled to a contingent or vested remainder
or reversion in the entire property, or a person having a lien or
interest which attaches to the entire property. A person specified in
this subdivision who is not made a party is not affected by the judgment
in the action.
2. A person having a lien on an undivided share or interest in the
property. The nature of the lien and the share or interest to which it
attaches shall be specified.
3. An unknown person entitled to an estate or interest in the property
sold. The court shall provide for the protection of his rights, as far
as may be, as if he were known and had appeared.
4. The state.

S 905. Complaint. The complaint shall describe the property with
reasonable certainty, specify the rights, shares and interests therein
of each of the parties, as far as the same are known to the plaintiff,
and contain any other allegation required by statute. If a party, or the
share, right or interest of a party, be unknown to the plaintiff; or if
a share, right or interest be uncertain or contingent; or if the
ownership of the inheritance depend upon an executory devise; or if a
remainder be contingent, so that the party cannot be named; such facts
shall be stated in the complaint. The complaint shall state whether the
parties own any other lands in common.

S 907. Trial of title or interest. 1. The title or interest of any
party in the property may be put in issue. When any defendant, not a
tenant in common or joint tenant with plaintiff, puts in issue title or
interest, all subsequent proceedings as to such defendant, including the
trial, judgment and execution, shall be the same as if it were an action
to recover real property.
2. An issue of fact joined in the action is triable by a jury.

S 911. Ascertainment of rights of parties before interlocutory
judgment on default or admission or where party is an infant, absentee
or unknown defendant.
If a defendant has made default in appearing or pleading, or the
rights of the parties are not controverted, or a party be an infant,
absentee or unknown, the court shall ascertain the rights, shares and
interests of the several parties in the property, by a reference or
otherwise, before interlocutory judgment is rendered.

S 913. Inquiry as to creditors. 1. Before an interlocutory judgment
for the sale of real property is rendered the court shall ascertain, by
reference or otherwise, whether there is any creditor not a party who
has a lien on the undivided share or interest of any party. A search
certified by the clerk or by the clerk and register of the county where
the property is situated that there is no such outstanding lien is
sufficient proof of the absence of such creditor.
2. Where a reference is directed, the referee shall cause a notice to
be published once in each week for four successive weeks in such
newspaper published in the county wherein the place of trial is
designated as shall be designated by the court directing said reference,
and also, where the court so directs, in a newspaper published in each
county wherein the property is situated, requiring each person not a
party to the action who, at the date of the order, had a lien upon any
undivided share or interest in the property, to appear before the
referee at a specified place and on or before a specified day to prove
his lien and the true amount due or to become due to him by reason
thereof. The referee shall report to the court with all convenient speed
the name of each creditor whose lien is satisfactorily proved before
him, the nature and extent of the lien, the date thereof and the amount
due or to become due thereupon.

S 915. Interlocutory judgment. The interlocutory judgment shall
determine the right, share or interest of each party in the property, as
far as the same has been ascertained. Where the property or any part
thereof is so circumstanced that a partition thereof cannot be made
without great prejudice to the owners, the interlocutory judgment,
except as otherwise expressly prescribed in this article, shall direct
that the property or the part so circumstanced be sold at public
auction. Otherwise, an interlocutory judgment in favor of the plaintiff
shall direct that partition be made between the parties according to
their respective rights, shares and interests and shall designate three
reputable and disinterested freeholders as commissioners to make the
partition so directed.

S 916. Interlocutory judgment directing partial partition. Where the
right, share and interest of a party has been ascertained, and the
rights, shares or interests of the other parties as between themselves
remain unascertained, an interlocutory judgment for a partition shall
direct a partition as between the party whose share has been so
determined and the other parties to the action. Where the rights, shares
and interests of two or more parties have been thus ascertained and
determined, the interlocutory judgment may also direct the partition
among them of a part of the property proportionate to their aggregate
shares. In either case, the court, from time to time, as the other
rights, shares and interests are ascertained, may render an
interlocutory judgment directing the partition, in like manner, of the
remainder of the property. Where an interlocutory judgment is rendered
in a case specified in this section, the court may direct the action to
be severed, and final judgment to be rendered with respect to the
portion of the property set apart to the parties whose rights, shares
and interests are determined, leaving the action to proceed as against
the other parties with respect to the remainder of the property; and if
necessary, the court may direct that one of those parties be substituted
as plaintiff.

S 917. Interlocutory judgment directing partition in common. Where
two or more parties desire to enjoy their shares in common with each
other, the interlocutory judgment may direct partition to be so made as
to set off to them their shares of the real property partitioned,
without partition as between themselves, to be held by them in common.

S 918. Interlocutory judgment directing sale or exception of lien or
dower interest. 1. An interlocutory judgment directing the sale of the
property may direct that the premises sold shall be free from the lien
of every debt of a decedent, from whom the plaintiff`s title is derived,
or of a decedent who, if living, should be a party to the action, except
debts which were a lien upon the premises before the death of such
decedent.
2. Where a party has an existing right of dower in the entire property
directed to be sold, at the time when an interlocutory judgment for a
sale is rendered in an action for partition, the court shall determine
whether the interests of all the parties require that the right of dower
should be excepted from the sale or that it should be sold. If a sale of
the property, including the right of dower, is directed, the interest of
the party entitled to the right of dower shall pass thereby; and the
purchaser, his heirs and assigns, shall hold the property free and
discharged from any claim by virtue of that right.

S 919. Interlocutory judgment directing credit on sale. The court, in
the interlocutory judgment for a sale, shall direct the terms of credit
which may be allowed for any portion of the purchase-money.

S 921. Actual partition. 1. The commissioners designated by the
interlocutory judgment shall forthwith proceed to make partition as
directed by such judgment, unless it appears to them that partition
thereof, or of a particular lot, tract or other portion thereof, cannot
be made without great prejudice to the owners; in which case, they shall
make a written report of that fact to the court.
2. The commissioners shall divide the property into distinct parcels
and allot the several parcels to the respective parties, quality and
quantity being relatively considered, according to the respective rights
and interest of the parties as fixed by the interlocutory judgment.
They shall designate the several parcels by suitable monuments. They may
employ a surveyor, with the necessary assistants, to aid them.
3. Where a party has a right of dower in the property, or a part
thereof, which has not been admeasured, or has an estate by the curtesy
or for life or for years in an undivided share of the property, the
commissioners may allot to that party his share without reference to the
duration of the estate. They may make partition of the share so allotted
to that party, among the parties who are entitled to the remainder or
reversion thereof, to be enjoyed by them upon the determination of the
particular estate, where, in the opinion of the commissioners, such a
partition can be made without prejudice to the rights of the parties.

S 922. Meeting of commissioners; report of actual partition;
confirming or setting aside report. 1. All the commissioners shall meet
together in the performance of any of their duties, but the acts of a
majority so met are valid. They shall make a full report of their
proceedings, under their hands, specifying therein the manner in which
they have discharged their trust, describing the property divided and
the share or interest in a share allotted to each party, with the
quantity, courses and distances or other particular description of each
share, and a description of the monuments; and specifying the items of
their charges. Their report shall be acknowledged or proved, and
certified, in like manner as a deed to be recorded, and shall be filed
in the office of the clerk.
2. The court shall confirm or set aside the report, and, if necessary,
may appoint new commissioners.
3. If the commissioners report that the property, or a particular lot,
tract or other portion thereof is so circumstanced that a partition
thereof cannot be made without great prejudice to the owners, the court
may render a supplemental interlocutory judgment reciting the facts and
directing that the property or the distinct parcel so circumstanced be
sold.

S 923. Security for credit on sale. The portion of the purchase-money
for which credit is allowed in the interlocutory judgment shall be
secured at interest by a mortgage upon the property sold, with a bond of
the purchaser; and by such additional security, if any, as the court
prescribes. The officer making the sale may take separate mortgages and
other securities in the name of the county treasurer of the county in
which the property is situated for such convenient portions of the
purchase-money as are directed by the court to be invested; and in the
name of the owner, for the share of any known owner of full age who
desires to have it invested.

S 925. Report of sale; confirmation. 1. Immediately after completing
the sale, the officer making it shall file with the clerk his report
thereof under oath, containing a description of each parcel sold, the
name of the purchaser and the price.
2. The court shall confirm or set aside the report.

S 927. Contents of judgment after actual partition. Upon the
confirmation by the court of the report of the commissioners making
partition, final judgment shall be entered directing that each of the
parties who is entitled to possession of a distinct parcel allotted to
him, be let into the possession thereof, either immediately, or after
the determination of the particular estate, as the case requires.

S 928. Effect of judgment after actual partition. A final judgment
after actual partition is binding and conclusive upon the following
persons, except parties and persons claiming under them whose rights and
interests are expressly left unaffected:
1. The plaintiff; each defendant upon whom the summons was served,
either personally or without the state or by publication; and his legal
representatives.
2. Each person claiming from, through or under such a party, by title
accruing after the filing of the judgment-roll, or after the filing in
the proper county clerk`s office of a notice of the pendency of the
action.
3. Each person not in being when the interlocutory judgment is
rendered who, by the happening of any contingency becomes afterwards
entitled to a beneficial interest attaching to, or an estate or interest
in, a portion of the property, the person first entitled to which, or
other virtual representative whereof, was a party specified in the first
subdivision of this section.

S 929. Lien of creditor upon share partitioned. After actual partition
the lien of a creditor having a lien on an undivided share or interest
in the property, who is or is not made a party, shall attach only to the
share or interest assigned to the party upon whose share or interest the
lien attached; which shall be first charged with its just proportion of
the costs and expenses of the action, in preference to the lien.

S 931. Contents of judgment after sale. A final judgment confirming a
sale shall direct the officer making it to execute the proper
conveyances and take the proper securities pursuant to the sale, and
also direct application of the proceeds.

S 933. Effect of judgment after sale. A final judgment after sale is
binding and conclusive upon the same persons upon whom a final judgment
for actual partition is binding and conclusive; and it bars each of
those persons who is not a purchaser at the sale from all right, title
and interest in the property sold. It is also a bar against each person
not a party who, at the time when it is entered, has a general lien by
judgment or decree on the undivided share or interest of a party, if
notice was given to appear before the referee and make proof of liens,
as prescribed in this article, and also against each person made a party
who then has a specific lien on any such undivided share or interest;
but a person having any such specific lien appearing of record at the
time of the filing of the notice of the pendency of the action, who is
not made a party, is not affected by such judgment.

S 941. Judgment as to parties having interest in entire property. If
a tenant by the curtesy or for life or for years of the entire property,
or a person entitled to a contingent or vested remainder or reversion in
the entire property, or a creditor, or other person, having a lien or
interest which attaches to the entire property, be made a defendant in
the action, the final judgment either may award to such a party his
entire right and interest, or the proceeds thereof, or where the right
or interest is contingent, direct that the proceeds or share thereof be
substituted for the property and invested for whoever may eventually be
entitled thereto, or may reserve and leave unaffected his right and
interest, or any portion thereof.

S 943. Judgment directing compensation to equalize partition. Where
it appears that partition cannot be made equal between the parties
according to their respective rights without prejudice to the rights or
interests of some of them, the final judgment may award compensation to
be made by one party to another for equality of partition. But
compensation cannot be so awarded against a party who is unknown or
whose name is unknown. Nor can it be awarded against an infant unless it
appears that he has personal property sufficient to pay it and that his
interests will be promoted thereby.

S 945. Judgment adjusting rents and profits. The court may adjust the
rights of a party as against any other party by reason of the receipt by
the latter of more than his proper proportion of the rents or profits of
a share.

S 947. Judgment affecting state tax claim. A judgment affecting
adversely the title, interest or claim of the state based upon a tax
deed, shall provide in effect as follows:
1. That the state shall have a lien upon such real property or part
thereof described in such tax deed, prior and superior to all other
liens, (a) for the amount of the unpaid taxes not adjudged illegal in
such action for which such real property was sold or liable to be sold
in the first instance and for which such tax deed was issued, together
with fees, charges and interest; (b) for the amount of the unpaid taxes
not adjudged illegal in such action for which such real property was
subsequently sold or liable to be sold, together with fees, charges and
interest; (c) for the amount of all taxes, fees and charges admitted or
paid by the state upon such real property to the date of the entry of
such judgment, together with interest thereon from the date of such
admission or payment. In the determination of the amount of such lien,
establishment of payments of taxes on said land by the adjudged or
admitted owner of the property during any of the same years in which
payments were also made by the state shall reduce the lien of the state
by the larger of the two tax payments for each of the years affected by
duplicate payments, and in the event that wholly identical areas are not
affected by the duplicate payments the court shall have power to
apportion and adjust the amount of the lien as equity may require.
2. That the state may foreclose such lien as a mortgage on real
property is foreclosed, provided such lien remains unpaid after the
expiration of one year from the entry of such judgment.
The remedy provided by this section for recovery of tax payments shall
be in addition to any other remedy now or hereafter available in law or
in equity.

S 951. Recording of judgment. A copy, which is certified as correct,
of the final judgment may be recorded in the office for recording deeds
in each county in which any real property affected is situated.

S 961. Disposition of proceeds of sale. The proceeds of a sale, after
deducting the costs and expenses chargeable against them shall be
immediately awarded as directed by the final judgment, to the parties
whose rights and interests have been sold, in proportion thereto. The
sum chargeable upon any share to satisfy a lien thereon shall be paid to
the creditor, or retained, subject to the order of the court; and the
remainder except as otherwise prescribed in this article, shall be paid
by the officer making the sale, to the party owning the share or his
legal representatives or into court for his use. The proceedings to
ascertain and settle the liens upon an undivided share shall not affect
any other party to the action or delay the paying over or investing of
money to or for the benefit of any other party upon whose share or
interest in the property there does not appear to be any existing lien.

S 962. Payment of proceeds into court where there are liens. If there
is any existing lien upon the share or interest of a party in the
property, the interlocutory judgment directing the sale shall direct the
officer making it to pay into court the portion of the money arising
from the sale of the share or interest of that party after deducting the
portion of the costs and expenses for which it is liable.

S 963. Payment of proceeds out of court where there are liens. 1.
Where the proceeds of a sale are paid into court, in a case specified in
section 962, the party may apply to the court for an order directing
that the money, or such part as he claims, be paid to him, and the court
shall make such an order as justice requires. The party shall by
affidavit show the amount actually due on each incumbrance, and the name
and residence of the owner of the incumbrance, as far as they are known
or can be ascertained with due diligence, and showing service of a
notice of the application on each owner of an incumbrance. Service of
the notice within the state shall be personal, or by leaving it at the
owner`s residence with some person of suitable age and discretion, at
least fourteen days previous to the application. Service without the
state, if personal, shall be made at least twenty days previous to the
application. If the owner of the incumbrance resides without the state,
and the place of his abode cannot be ascertained with reasonable
diligence, notice may be served on him by publishing it in such
newspaper or newspapers as the court may direct, once in each week for
the four weeks immediately preceding the application.
2. When the whole amount of the unsatisfied liens upon an undivided
share has been ascertained, the court shall order the portion of the
money so paid into court on account of that share to be distributed
among the creditors having the liens, according to the priority of each
of them. Where the incumbrancer is not a party to the action, the clerk
or other officer by whom a lien is paid off shall procure satisfaction
to be acknowledged or proved, as required by law, and shall cause the
incumbrance to be duly satisfied or cancelled of record. The expense of
so doing shall be paid out of the portion of the money in court
belonging to the party by whom the incumbrance was payable.

S 964. Payment of proceeds into court in cases involving decedent`s
property. Where the property has been sold free from the lien of debts,
a final judgment, entered before eighteen months have elapsed from the
granting of letters of administration or letters testamentary upon the
estate of a decedent from whom the plaintiff derived his title, shall
direct that the proceeds of the sale remaining after the payment of the
costs, referee`s fees, expenses of sale, and liens established before
the death of the decedent, including any sum allowed to a widow in
satisfaction of her right of dower, therein directed to be paid, be paid
forthwith into court by the referee making such sale.
A final judgment in such case, entered before eighteen months have
elapsed from the granting of letters of administration or letters
testamentary upon the estate of a deceased person, who, if living,
should be a party to the action, shall direct that the share of the
proceeds of such sale, which would have been his, if living, be paid
into court by such referee.

S 965. Payment of proceeds out of court in cases involving decedent`s
property. Money paid into court under section 964 may be paid out of
court to such parties as are entitled thereto by order of the court made
upon motion of any party, and upon:
1. Notice of motion to the executors or administrators of the decedent
and the furnishing of an undertaking that the moving party will pay any
and all claims, not exceeding the amount paid into court, when required
by order of the court or by order of the surrogate of the surrogate`s
court in a proceeding to mortgage, lease or sell the real property of
such decedent; except that where a final accounting has been had in the
estate of such decedent in a surrogate`s court, and certified copies of
the account and decree of final settlement, showing that all of the
debts of the decedent have been paid in full, is filed with the court
having jurisdiction of the fund, the court may dispense with the
furnishing of an undertaking; or
2. The furnishing of the certificate of the surrogate of the county of
which any such decedent was a resident at the time of his death, showing
that eighteen months have elapsed since the issuing of letters
testamentary or letters of administration, as the case may be, upon the
estate of said decedent, and that no proceedings for the mortgage, lease
or sale of the real property of such decedent for the payment of his
debts or funeral expenses, or both, is pending, and the certificate of
the county clerk of the county where the real property sold under the
interlocutory judgment is located, showing that no notice of pendency of
action in respect to such real property has been filed in his office.
The certificate of the surrogate required herein may be executed in the
name of the surrogate by the clerk of the surrogate`s court under the
seal of the court.

S 966. Payment of proceeds directly to parties in cases involving
decedent`s property. Where the property has been sold free from the lien
of debts and the court is furnished with the certificates described in
subdivision 2 of section 965, the final judgment shall direct payment of
the proceeds of sale to such parties as are entitled thereto.

S 967. Payment of proceeds to owner of particular or future estate. A
party who has a right of dower, or is a tenant for life or for years, in
or of an undivided share of the property sold, or has an inchoate right
of dower or any other future right or estate, vested or contingent, or
any person not in being who by any contingency may become entitled to
any interest or estate in the property sold, is entitled to have a
proportion of the proceeds of the sale invested, secured or paid over,
in such manner as the court deems calculated to protect the rights and
interests of the parties.

S 968. Manner of payment of proceeds to owner of particular or future
estate. Whenever the whole or a part of the proceeds of a sale
represents the interest of a particular estate, and also represents one
or more other interests subsequent thereto, the power to determine
whether the owner of the particular estate shall receive, in
satisfaction of his estate or interest, a sum in gross or shall receive
the earnings, as they accrue, of a sum invested for his benefit in
permanent securities at interest, rests in the discretion of the court,
except that if all parties affected shall have agreed either to the
payment of a sum in gross or the investment of the proceeds the court
shall, by order, give effect to such agreement. The application of the
owner of any such particular estate for the award of a sum in gross
shall be granted unless the court finds that unreasonable hardship is
likely to be caused thereby to the owner of some other interest in the
affected real property. The application for the award of a sum in gross
by the owner of some interest in the affected real property other than
the owner of the particular estate shall be granted if the court finds
that the granting of such application is equitable under the
circumstances.

S 969. Shares of infant, incompetent or conservatee. Where a party
entitled to receive a portion of the proceeds of sale is an infant,
incompetent or conservatee, such portion may be disposed of as follows:
1. The court may direct it to be invested in permanent securities in
the name and for the benefit of the infant, incompetent or conservatee,
or it may direct it to be paid over to the general guardian of the
infant, committee of the incompetent or conservator of the conservatee,
when the guardian, committee conservator shall have executed an
undertaking to such infant, incompetent or conservatee; or,
2. Where a general guardian, committee or conservator has been
appointed, upon proof that it will be for the best interest and
advantage of the estate of such infant, incompetent or conservatee
person, the court may authorize and direct such guardian, committee or
conservator, in the name of such infant, incompetent person or
conservatee, to make application for an award of a sum in gross as
provided in section 968; or,
3. If any of the moneys arising from the proceeds of such sale shall
have been paid to the county treasurer, and on due proof that such money
has remained uninvested in permanent securities for the space of three
months, the court may direct the same to be paid to the general
guardian, committee or conservator of such infant, incompetent or
conservatee upon his giving an undertaking for the faithful execution of
his trust; where said sum in hands of county treasurer does not exceed
the sum of one thousand dollars the court may direct the same to be paid
in accordance with subdivision five of this section; or,
4. In the case of an infant, incompetent or conservatee residing
without the state and having in the state or country where he or she
resides a general guardian, committee or conservator, or person duly
appointed under the laws of such state or country to the control, and
entitled by the laws of such state or country to the custody, of the
money of such infant, incompetent or conservatee, the court, upon
satisfactory proof of such facts and of the sufficiency of the
undertaking given by such general guardian, committee or conservator or
person in such state or country by the certificate of a judge of a court
of record of such state or country, or otherwise, may direct that the
portion of such infant, incompetent or conservatee arising upon such
sale shall be paid over to such general guardian, committee or
conservator or person; or,
5. If the portion of the proceeds arising upon such sale which belongs
to an infant, incompetent or conservatee residing within or without the
state does not exceed one thousand dollars, the court may direct that
the same may be paid to his father, or to his mother or to some
competent person with whom the infant, incompetent or conservatee
resides, or who has some interest in his welfare, for the use and
benefit of such infant, incompetent or conservatee.

S 970. Shares of unknown or absent owner. Where a person has been made
a defendant as an unknown person, or where the name of a defendant is
unknown, or where the summons has been served upon a defendant without
the state or by publication, and he has not appeared in the action, the
court shall direct his portion to be paid into court and invested in
permanent securities at interest, for his benefit, until claimed by him
or his legal representatives.

S 971. Security for refund. The court, in its discretion, may require
any person, before he receives his portion of the proceeds of the sale
to give such security as it directs, to the state, or the county
treasurer, who shall hold it for the use and benefit of the persons
interested, or to such parties or other persons as it prescribes, to
refund the same, or a portion thereof, with interest, if it thereafter
appears that he was not entitled thereto.

S 973. Report of disposition of proceeds. Within sixty days after the
entry of final judgment, unless such time be extended by an order of the
court entered in the office of the clerk within said sixty days, the
officer making the sale shall file with the clerk his report under oath
of the disposition of the proceeds of the sale, accompanied by the
vouchers of the persons to whom payments were ordered to be made.

S 981. Costs and expenses. 1. The final judgment for the partition of
the property must also award that each defendant pay to the plaintiff
his proportion of the plaintiff`s costs, including the additional
allowance. The sum to be paid by each must be fixed by the court
according to the respective rights of the parties, and specified in the
judgment.
2. If a defendant is unknown, his proportion of the costs shall be
fixed and specified in like manner. An execution against an unknown
defendant may be issued to collect the costs awarded against him as if
he were named in the judgment; and his right, share or interest in the
property may be sold by virtue thereof as if he were named in the
execution.
3. Where final judgment confirming a sale is rendered, the costs of
each party to the action and the expenses of the sale, including the
officer`s fees, shall be deducted from the proceeds of the sale and
distributed as the court shall order. But the court, in its discretion,
may direct that the costs and expenses of any trial, reference or other
proceeding in the action be paid out of the share of any party in the
proceeds, or may render judgment against any party therefor. Where a
proportion of the proceeds is to be paid to or invested for the benefit
of any person, as prescribed in any provision of this article, the
amount thereof must be determined by the residue of the entire proceeds
remaining after deducting the costs and expenses chargeable against
them.
4. The officer making the sale shall pay out of the proceeds, unless
the judgment otherwise directs, all taxes, assessments and water rates,
which are liens upon the property sold, and redeem the property sold
from any sales for unpaid taxes, assessments or water rates, which have
not apparently become absolute. The sums necessary to make those
payments and redemptions are deemed expenses of the sale.
5. After actual partition, the fees and expenses of the commissioners,
including the expense of a survey when it is made, shall be taxed under
the direction of the court, and the amount thereof shall be paid by the
plaintiff and allowed as part of his costs.
6. Fees of surveyor or commissioner in action for partition. The fees
of a surveyor and a surveyor`s assistant, employed as prescribed by law
in an action for partition, and of a commissioner appointed as
prescribed by law to make partition, shall be the same as those provided
by section 1052 of this chapter for services rendered in an action for
dower.

S 991. Proceeding for share of unknown heirs; presumption of death;
service. 1. Where a portion of the proceeds of the sale is paid into
court for unknown heirs and is unclaimed by any person entitled thereto
for twenty-five years after such payment the unknown heirs are presumed
to have been dead at the time of the sale. A special proceeding may be
commenced for the distribution of such proceeds to the persons entitled
thereto.
2. The notice of petition and petition shall be served upon the
unknown heirs or their representatives, the known heirs, their next of
kin, representatives or distributees, and all persons interested in such
proceeds. Service shall be made at least twenty days before the time at
which the petition is noticed to be heard. Each of the known persons
within the state, and the comptroller of the state if any proceeds have
been paid over to him by a county treasurer, shall be served personally.
All other persons shall be served in the manner prescribed for the
service by publication of a summons.

S 992. Judgment in proceeding for share of unknown heirs. Unknown
heirs or their representatives not appearing shall be barred from any
interest and the court shall render a judgment that the interest of such
unknown heirs was vested in the known heirs of the ancestor from whom
the unknown heirs derived title and that the proceeds be paid out of
court to the persons entitled thereto.