Equity of redemption, etc. By this and the preceding sections of the code, as it is provided that in a suit to enforce the lien of a mortgage, subsequent encumbrancers must be made parties thereto, and that the decree therein shall ascertain and determine the amount and priority of the liens of all such parties, and direct that the premises be sold, and the proceeds applied to the satisfaction of the debts secured thereby in the order specified therein, and that process to enforce such decree should issue upon the joint application of the parties or the order of the court. Held, that a sale in pursuance of such decree was a sale in pursuance of the decree and upon the process of each of the lien creditors provided for in the decree, and extinguished their liens, and therefore neither of them had a right to redeem the premises Oct. 11, 1862, ◊ 415. Surplus of claimed. § 419. [415.] When any of the proceeds of the sale Oct. 11, 1862, remains with the clerk unclaimed by the person who is entitled to the same for the period of two months, the proceeds not court or judge thereof shall direct that the same be put at interest by the clerk, subject to the order of the court, for the benefit of such person, his representatives or assigns. $416. Suit not main tainable dur ing pendency · of action for debt. § 420. [416.] During the pendency of an action at Oct. 11, 1862, law for the recovery of a debt secured by any lien mentioned in section 414 [410], a suit cannot be maintained for the foreclosure of such lien, nor thereafter, unless judgment be given in such action that the plaintiff recover such debt or some part thereof, and an execution thereon against the property of the defendant in the judgment is returned unsatisfied in whole or in part. $421. [417.] When a suit is commenced to foreclose Oct. 11, 1862, a lien, by which a debt is secured, which debt is payable in installments, either of interest or principal, and debt payable any of such installments is not then due, the court shall ments. decree a foreclosure of the lien, and may also decree a sale of the property for the satisfaction of the whole of such debt, or so much thereof as may be necessary to satisfy the installment then due, with costs of suit; and in the latter case, the decree of foreclosure as to the re $ 417. Decree when in install Oct. 11, 1862, § 417. Decree when debt payable in installments. Oct. 11, 1862, 418. Effect of payment before sale. mainder of the property may be enforced by an order of sale, in whole or in part, whenever default shall be made in the payment of the installments not then due. Debt payable in installments. -The mortgagee and those claiming under him have a clear right to bring an action to foreclose, when any one installment falls due and is unpaid: Grattan v. Wiggins, 23 Cal. 28. A judgment enforcing the lien of the inortgage for one installment is not a bar to another action to enforce the lien of the mortgage for another installment, subsequently falling due: McDougal v. Downey, 45 Id. 165. Where property was mortgaged to secure two notes falling due at different periods, and the mortgage was foreclosed by suit upon the note first falling due, and then, after the period for redemption had passed, but before the sheriff had executed his deed, the judgment on the first note was paid, it was held that the payment of this note left the property subject to the mortgage to secure the second note, and that the lien of the mortgage for the latter could not be displaced by a sale under junior encumbrances in proceedings to which the holder of the second note was not a party: Hocker v. Reas, 18 Id. 650. Where the mortgage is given to secure more than one note, the indorsee of each note takes with it a pro rata portion of the security: Phelan v. Olney, 6 Id. 483; Keyes v. Wood, 21 Vt. 331; Pattison v. Hull, 9 Cow. 751. A mortgagee can by agreement fix the rights of the several holders of several notes, to the mortgage security, and such an agreement may be implied from the circumstances of the transfer: Grattan v. Wiggins, 23 Cal. 25; Sherwood v. Dunbar, 6 Id. 53; Keyes v. Wood, 21 Vt. 331; Langdon v. Keith, 9 Id. 299; Wright v. Parker, 2 Aik. 212; Pattison v. Hull, 9 Cow. 752; McVay v. Bloodgood, 9 Port. 547; Banks v. Tarleton, 23 Miss. 173. And where several such notes have been given, and are assigned to different persons, and the assignee of one note, having the first right to the benefit of the mortgage security, forecloses, such foreclosure and sale operate as an extinguishment of the mortgage: Grattan v. Wiggins, 23 Cal. 16. § 422. [418.] If, before a decree is given, the amount then due with the costs of suit is brought into court and paid to the clerk, the suit shall be dismissed, and if the same be done after decree and before sale, the effect of the decree as to the amount then due and paid shall be terminated, and the execution, if any have issued, be recalled by the clerk. When an installment not due is adjudged to be paid, the court shall determine and specify in the decrce what sum shall be received in satisfaction thereof, which sum may be equal to such installment, or otherwise, according to the present value thereof. The provisions of this title as to the liens upon personal property are not to be construed so as to exclude a person having such a lien from any other remedy or right in regard to such property. § 424. § 425. TITLE V. OF SUITS FOR THE PARTITION OF REAL PROPERTY. § 423. Who may maintain a suit for partition. Complaint, what it shall contain. What lien creditors may be made defendants, and upon what share lien continues after partition. § 429. Answer, what to contain. Rights of the parties may be put in issue, and in case of sale, title first to be ascertained. § 430. § 431. When order of sale may be made, instead of decree of partition. § 432. Court may set aside or confirm report of referees; when confirmed effect of. § 437. § 438. Before making order of sale, lien creditors to be made parties. § 439. In case such liens exist, court to appoint referee to ascertain the amount due thereon. § 440. Plaintiff to serve notice on such lien creditors to appear before referee and make proof in relation thereto. Report of such referee may be excepted to; notice to absent or unknown lien creditors. § 442. § 443. Effect of confirmation of report of such referee. § 444. Distribution of the proceeds of sale, how decreed. § 445. When party to the suit may be required to exhaust other securities before distribution of proceeds of sale. § 446. Proceedings to determine amount of liens, and rights of parties to funds paid into court, not to delay or affect certain parties. § 447. Proceeds of sale to be distributed by referees if directed by the court, otherwise to be paid into court. § 448. When suit to continue after payment of proceeds into court, and pro § 449. ceedings therein. Sale by referees, how made. § 450. Court may direct sale to be made on credit. § 451. Mortgages and other securities, how taken by referees. § 454. § 455. If consent not given, court to determine the value of such estate. § 456. Rights of unknown tenants for life or years to be protected. § 457. Inchoate or contingent interests, how provided for. § 462. § 463. Receipt, when party entitled to share, or an encumbrancer purchases. § 467. $468. When partition cannot be made, court may decree compensation. Feb. 19, 1891, $1. Who may maintain suit 6 Or. 156. St. 1891, p. 67. § 471. Costs of partition, how apportioned. § 423. [419.] When several persons hold and are in possession of real property as tenants in common, in for partition. which one or more of them have an estate of inheritance, or for life or years, or when several persons hold as tenants in common a vested remainder or reversion in any real property, any one or more of them may maintain a suit for the partition of such real property, according to the respective rights of the persons interested therein, and for a sale of such property, or a part of it, if it appears that a partition cannot be had without great prejudice to the owner. Who may compel partition. jurisdiction for some other purpose, it may, to do full justice between the parties, decree a partition, though there be conflicting claims to the property: Scott v. Guernsey, 60 Barb. 178. One who conveys his moiety transfers also his right to compel partition, and his grantee acquires his rights in that regard: King v. Howard, 27 Mo. 21; Ragan's Estate, 7 Watts, 442. A mortgagor, before entry for condition broken, has a right to partition, provided his mortgagee is not prejudiced thereby: Upham v. Bradley, 17 Me. 427; Green v. Arnold, 11 R. I. 364. An administrator has no such right of possession as entitles him to partition: Nason v. Willard, 2 Mass. 478; Whitlock v. Willard, 18 Fla. 156. By this section a tenant for years may sue for partition, and this is so though the tenant of the other moiety holds in fee: Mussey v. Sanborn, 15 Mass. 155. A tenant by curtesy, as he has a life estate, may, when lands 96; Morrill v. Morrill, 5 N. H. 134; Oct. 11, 1862, $ 420. Complaint. § 424. [420.] The interest of all persons in the prop- Oct. 11, 1862, erty, whether such persons be known or unknown, shall be set forth in the complaint, specifically and particularly, as far as known to the plaintiff; and if one or more of 10 Or. 86. 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 shall be set forth in the complaint. Complaint. In the complaint in partition, the particular property must be designated, and also the interests of the parties therein: Hammer v. Silver, 2 Or. 336. If the complaint fails to sufficiently state the origin, nature, or extent of the interests of the plaintiffs, the objection should be presented by demurrer, or it is waived: Broad v. Broad, 40 Cal. 495. If defendant has two deeds, each purporting to convey an undivided two thirds of the property, and one of them was given as a substitute for the other, that fact must be averred, and if not averred the plaintiff cannot prove it. All the rights of the several parties plaintiff, as well as defendant, must be put in issue, or they cannot be tried: Miller v. Sharp, 48 Id. 394. The complaint must aver that the co-tenants hold and are in possession of real property as joint tenants, or as tenants in common, in which property one or more of them have an estate or inheritance, or for life or lives, or for years; and if these averments are not made, it does not state facts sufficient to constitute a cause of action: Bradley v. Harkness, 26 Id. 76. A general allegation that the premises cannot be divided by metes and bounds without preju dice" is sufficient, without an allega- Parties. All the tenants in com- |