CHAPTER 160.

PARTITION OF PROPERTY.

SECTION 1. Suits or actions for the partition or division of Suits may be real estate may be instituted by bill or petition, in the Circuit by bill or petition. Courts of this State, in the county or circuit in which the lands to be divided, or which are the subject matter of the suit, may lie or be situated; and the proceedings in such suits or actions for partition shall be governed by the ordinary rules of proceedings in the Courts of Chancery of this State, except as is herein otherwise provided. (a)

By whom to be

SEC. 2. Such bill or petition may be filed by any one or more of several joint tenants, tenants in common, or coparceners, filed, and its against their co-tenants, coparceners or others interested in

(a) Sec. 1, Act of March 14, 1844.

statements.

Process against defendants to appear and

answer.

Service by publication.

Personal service.

any lands to be divided; and such bill or petition shall set
forth the description of the lands or premises of which partition
is prayed by metes and bounds, or other sufficient description,
and shall state, according to the best of the knowledge and be-
lief of the petitioners, the names and places of residence of
the several owners, joint tenants, tenants in common, or copar-
ceners, or other persons interested in said lands or real estate,
the quantity or proportionate. share held or claimed by each,
and such other matters (if any) as may be necessary to enable
the court to adjudicate fully upon the rights and interests of
the parties. But if the names, residence, quantity of interest
or proportionate share of any of the owners or claimants of
such lands are unknown to the petitioners or complainants,
then it may be so stated in such bill or petition, and such suit
may proceed in the same manner as though such unknown per-
sons or defendants were named in the bill or petition, and such
bill or petition shall be sworn to by some one or more of the
petitioners. (a)

SEC. 3. On filing such bill or petition, a subpoena or subpoenas
to appear and answer shall issue against all of the defend-
ants who reside within the circuit in which the suit is instituted,
which subpoena shall state that the bill is filed for a partition of
lands; and in case any of the defendants shall fail to appear
and answer such bill or petition, within sixty days after the
return day of the subpoena, then the same may, by order of
the court, be taken as confessed against such defaulting de-
fendant or defendants, provided the subpoena or subpoenas
shall be returned, personally served, or duly executed accord-
ing to law. And in case any of the defendants in such bill or
petition are therein stated to be non-residents of the circuit in
which the suit is instituted, or unknown, or their places of res-
idence unknown, then as to such defendants or parties inter-
ested in the lands in question, the court, if in session, or Judge
at chambers, shall make an order requiring them to appear and
answer such bill or petition; and such order, or notice of the
same, shall be published for such length of time, and in such
places as shall be specially required by the order of the court
therein made in each case. (b)

SEC. 4. After the time fixed for the appearance and answer of such last named defendants shall have elapsed, and upon due proof in writing, by affidavit, to the satisfaction of the court, that the order or notice has been published according to the order of the court, the bill may be taken as confessed against all of such non-residents or unknown defendants as may fail to appear and answer: Provided, however, That personal service of a copy of such order to appear and answer, or of notice thereof in writing, sixty days before the time therein limited for the defendant to appear and answer, shall be (as to

(a) Sec. 2, Act of March 14, 1844.

(b) Sec. 3, Act of March 14, 1844, as

amended by Chapter 725, Act of Dec. 14,
1855.

the defendant so served) deemed equivalent to publication, and dispense with the necessity thereof: And provided further, That in all cases the notice or order, whether published or served, shall contain a brief description of the premises mentioned in the petition, the names of the parties or persons alleged therein to be interested in such premises, and shall state that the object of the suit is to procure partition of the same. (c)

entry of pro

SEC. 5. Upon the bill or petition being taken as confessed, or Decree upon upon the coming in of the answers of the defendants, the court hearing or shall proceed to ascertain and adjudicate the rights and inter- confesso. ests of the parties, either by a reference to a master, by a hearing upon the pleadings and proofs, or in such other way or manner as may be most convenient and according to the ordinary rules and practice of the court; and shall also decree that partition be made if it shall appear that the parties are entitled to the same: Provided, however, That when the rights and interests, or proportions, of the complainants or petitioners are clearly established to the satisfaction of the court, or are undisputed, and also when the rights and interests of some of the defendants, but not all of them, are ascertained or established to the satisfaction of the court, or are undisputed, the court may by decree order partition to be made, and the shares, proportions or interests of the complainant or complainants, and such of the defendants as have established and satisfactorily proved their respective shares, interests or proportions, to be set off and allotted to them, leaving for future adjustment (by further proceedings in the same cause) the rights, shares and interests of the other defendants. (c)

Three commis

Oath, duties,

SEC. 6. Upon a decree of partition being made, the court shall appoint three suitable and competent persons to act sioners to be as commissioners in making the partition decreed, who shall appointed. be selected by the court, unless agreed upon by the parties, and who shall proceed to make partition of the premises in question according to the order of the court, and, having made such partition, shall report the same in writing to the court without delay. Such commissioners shall be sworn before entering upon their duties by the clerk of said court, or by &c. any Justice of the Peace of the county, faithfully and impartially to execute the trust imposed in them, and shall have power to employ a surveyor or surveyors, if necessary for the purpose of making such partition, and shall be allowed such 15 Fla., 424. sum as may be deemed reasonable by the court for their services, not exceeding, however, three dollars per day for every day actually employed. (c)

commissioners.

SEC. 7. Either party may file objections or exceptions to the Exceptions report of the Commissioners within ten days after they shall to report of be notified of the filing of the same; or if no notice is given them, within thirty days after same is filed; and if no objec

(c) Secs. 3, 4 and 5, Act of March 14, 1844.

Final decree thereon.

Removal of commissioners.

Sale, when to be decreed.

Sale may be ordered to be on credit.

Conveyance to be made on payment.

Costs of suit.

tions or exceptions are filed as aforesaid, or if the court is sat-
isfied, upon the hearing of any such objection or exceptions,
that they are not well founded, then the report shall be con-
firmed, and a final decree shall be entered up, which shall ac-
cordingly vest in the respective parties the title of the several
parcels or portions of the premises allotted to them respec-
tively, and shall give to each of them the possession and quiet
title to their respective shares. as against the other parties to
the suit, or those claiming through or under them, and a certi-
fied copy of said decree (being duly entered according to law)
shall be recorded by the complainants, or some of the parties
in interest, in the office of the Clerk of the Circuit Court of
the county in which the lands lie, which shall have the same
effect as if mutual releases had been executed between the par-
ties. (d)

SEC. 8. Such commissioners may be removed by the court,
upon good cause to be shown, and others appointed in their
place; and any party in interest may except or object to their
report, and such objections or exceptions shall be heard and
decided by the court, and such further order made thereon as
to justice shall appertain. (d)

SEC. 9. If the commissioners so appointed, shall report to the court that the lands, tenements, or hereditaments, of which partition shall have been directed as aforesaid, are so situated that a partition thereof cannot be made without great prejudice to the owners of the same, and if the court shall be satisfied that such report is just and correct, the court may thereupon, by a rule to be entered on the filing of the said report, order the premises so situated to be sold at public auction to the highest bidder, by and under the direction of the said commissioners, and the moneys arising from such sale to be paid into the court, to be divided among the respective parties interested in proportion to their shares or interest. (d)

SEC. 10. For good cause to be shown the court may order such sale to be made upon a reasonable credit, for part or all of the purchase money, but in all cases at least one-third of the purchase money shall be paid down, unless all the parties consent to a credit for the whole; and in all cases the purchase money not paid down shall be secured by bond and mortgage on the premises, and such other additional security as the court shall direct. (d)

SEC. 11. No conveyance shall be executed in pursuance of such sale by the said commissioners until the sale and the terms thereof shall have been reported to the court, and the money arising therefrom paid into court, nor until the sale has been approved by the court, and a conveyance ordered in pursuance thereof. (d)

SEC. 12. All parties in interest, whether complainant or respondent, shall, by decree of the court, be bound to pay a share

(d) Sec. 6, 7, 8, 9 and 10, Act of March 14, 1844.

of the cost and charges arising from the partition or sale of the land, in proportion to his, her or their interest, and such decree shall be binding on all their goods and chattels, lands or tenements, lying in said State; and in case of sale, the court may order the same to be paid or retained out of the moneys arising from such sale and due or belonging to the parties who ought to pay the same. (e)

personalty.

SEC. 13. Whenever personal property shall be jointly owned Petition for by two or more persons, whether in equal proportions or oth- partition of erwise, any or either of the owners thereof may file his, her or their petition with the Clerk of the Circuit Court, stating his, her or their desire to have the said property divided among the several owners thereof; said petition to describe the property to be divided with reasonable certainty, and to set forth the names of the several owners thereof. (ƒ)

SEC. 14. Upon filing the said petition with the clerk, he shall Notice to make out a notice to the several claimants therein mentioned, claimants. and deliver the same to the proper executive officer of the court, who shall serve said notice, by leaving a copy with each of said claimants, and make return accordingly; said notice shall contain the substance of the petition. (ƒ)

17 Fla., 332.

publication.

SEC. 15. When any or either of the owners of said property Notice by reside beyond the limits of this State, it shall be made to appear to the satisfaction of the court that notice has been given in some public newspaper nearest to the place where the property to be divided is kept, for the space of three months previous to the first day of the court, of the filing of said petition, and the time when the petitioner intends to move for the appointment of commissioners. (g)

SEC. 16. If any person or persons not named in the said pe- Adverse claim, tition, shall set up a claim to any part of or interest in the how tried. said property, or if any other fact material to the title of said property shall become the subject of dispute, a jury shall be immediately summoned and empanelled, to try the same, and their verdict shall be conclusive for the purpose of the partition, and no written pleadings shall be necessary. (h)

missioners.

SEC. 17. The said court, except in the case provided for by Appointment the 15th section of this chapter, shall at any time after the ex- of two compiration of thirty days from the service of said notice, upon application of the petitioner or his counsel, make an order appointing two fit and proper persons, who shall not be of kin to either party, as commissioners to divide and partition said property; said commissioners to take an oath before some Judge or Justice of the Peace, faithfully and impartially to divide and partition said property according to the claims and proportions of the respective owners thereof. (i)

SEC. 18. Should the said commissioners disagree upon any May appoint point which may arise in the performance of their duties, they umpire.

(e) Secs. 10 and 11, Act of March 14, 1844.

(f) Secs. 1 and 2, Act of Feb. 10, 1832.

(g) Sec. 7, Act of Feb. 10, 1832,
(h) Sec. 4, Act of Feb. 10, 1832.
(i) Sec. 3, Act of Feb. 10, 1832.