Code-Co's Internet Access to Utah Law: http://www.code-co.com
[Utah Code Table of Contents]
[TITLE 78. Table of Contents]
78-39-1 By cotenants of real property.
When several cotenants hold and are in possession of real
property as joint tenants or tenants in common, in which
one or more of them have an estate of inheritance, or for
life or lives, or for years, an action may be brought by
one or more of such persons for a partition thereof according
to the respective rights of the persons interested therein,
and for a sale of such property or a part thereof, if it
appears that a partition cannot be made without great prejudice
to the owners.
1953
78-39-2 Complaint - To set forth interests of all parties.
The interests of all persons in the property, whether
such persons are known or unknown, must be set forth in the
complaint, specifically and particularly, as far as known
to the plaintiff, and if one or more of the parties, or the
share or quantity of interest of any of the parties, is unknown
to the plaintiff, or is uncertain or contingent, or the ownership
of the inheritance depends upon an executory devise, or the
remainder is a contingent remainder, so that such parties
cannot be named, that fact must be set forth in the complaint.
1953
78-39-3 Parties - Only holders of recorded rights necessary.
No person having a conveyance of, or claiming a lien on,
the property, or some part of it, need be made a party to
the action, unless such conveyance or lien appears of record.
1953
78-39-4 Lis pendens required.
Immediately after filing the complaint in the district
court the plaintiff must file with the recorder of the county
or of the several counties in which the property is situated,
either a copy of such complaint or a notice of the pendency
of the action, containing the names of the parties so far
as known, the object of the action and a description of the
property to be affected thereby. From the time of filing
such notice for record all persons shall be deemed to have
notice of the pendency of the action.
1953
78-39-5 Summons - To whom directed.
The summons must be directed to all the joint tenants,
tenants in common of all persons having any interest in,
or liens of record by mortgage, judgment or otherwise upon,
the property or any particular portion thereof, and generally
to all persons unknown who have or claim any interest in
the property.
1953
78-39-6 Service by publication.
If a party having a share or interest is unknown, or any
one of the known parties resides out of the state or cannot
be found therein, the summons may be served on such absent
or unknown party by publication as in other cases.
1953
78-39-7 Answer must set forth interests claimed.
The defendants who have been personally served with the
summons, or who have appeared without such service, must
set forth in their answers, fully and particularly, the origin,
nature and extent of their respective interests in the property;
and if such defendants claim a lien on the property by mortgage,
judgment or otherwise, they must state the original amount
and date of the same, and the sum remaining due thereon;
also whether the same has been secured in any other way or
not, and if secured, the extent and nature of such security,
or they are deemed to have waived their rights to such lien.
1953
78-39-8 Right of all parties may be determined.
The rights of the several parties, plaintiff as well as
defendant, may be put in issue, tried and determined by such
action; and when a sale of the premises is necessary, the
title must be ascertained by proof to the satisfaction of
the court before the judgment of sale can be made; and where
service of the summons has been made by publication like
proofs must be required of the rights of the absent or unknown
parties before such judgment is rendered; except that where
there are several unknown persons having an interest in the
property, their rights may be considered together in the
action, and not severally among themselves.
1953
78-39-9 Partial partition allowed - When.
Whenever from any cause it is, in the opinion of the court,
impracticable or highly inconvenient to make complete partition
in the first instance among all the parties in interest,
the court may first ascertain and determine the shares or
interests respectively held by the original cotenants, and
thereupon adjudge and cause a partition to be made as if
such original cotenants were the parties and sole parties
in interest and the only parties to the action, and thereafter
may proceed in like manner to adjudge and make partition
separately of each share or portion so ascertained and allotted
as among those claiming under the original tenant to whom
the same shall have been so set apart, or may allow them
to remain tenants in common thereof, as they may desire.
1953
78-39-10 When all holders of recorded rights are not made parties - Procedure - Reference.
If it appears to the court that there are outstanding
liens or encumbrances of record upon such real property,
or any part or portion thereof, which existed and were of
record at the time of the commencement of the action, and
the persons holding such liens are not made parties to the
action, the court must either order such persons to be made
parties to the action by an amendment or supplemental complaint,
or appoint a referee to ascertain whether or not such liens
or encumbrances have been paid, or, if not paid, what amount
remains due thereon, and their order among the liens or encumbrances
severally held by such persons and the parties to said action,
and whether the amount remaining due thereon has been secured
in any manner and, if secured, the nature and extent of the
security.
1953
78-39-11 Notice of appearance before referee - Referee's report.
The plaintiff must cause a notice to be served, a reasonable
time previous to the day for appearance before the referee
appointed as provided in Section
78-39-10
, on each person having an outstanding lien
of record who is not a party to the action, to appear before
the referee at a specified time and place, to make proof
by his own affidavit or otherwise of the amount due or to
become due, contingently or absolutely, thereon. In case
such person is absent, or his residence is unknown, service
may be made by publication or by notice to his agents, under
the direction of the court, in such manner as may be proper.
The report of the referee thereon must be made to the court,
and must be confirmed, modified, or set aside and a new reference
ordered as the justice of the case may require.
1995
78-39-12 If partition prejudicial, sale in lieu thereof - Partition by referees.
If it is alleged in the complaint and established by the
evidence, or if it appears by the evidence without such allegation
in the complaint, to the satisfaction of the court, that
the property or any part of it is so situated that the partition
cannot be made without great prejudice to the owners, the
court may order a sale thereof; otherwise, upon the requisite
proofs being made, it must order a partition according to
the respective rights of the parties as ascertained by the
court, and appoint three referees therefor, and must designate
the portion to remain undivided for the owners whose interests
remain unknown or are not ascertained; provided, however,
that when the action is for partition of a mining claim among
the tenants in common, joint tenants, copartners or parceners
thereof the court, upon good cause shown by any party or
parties in interest, may, instead of ordering partition to
be made in the manner as hereinbefore provided, or a sale
of the premises for cash, direct the referees to divide the
claim in the manner hereinafter provided.
1953
78-39-13 Duties and powers of referees - Procedure.
In making the partition the referees must divide the property
and allot the several portions thereof to the respective
parties, quality and quantity relatively considered, according
to the respective rights of the parties as determined by
the court pursuant to the provisions of this chapter, designating
the several portions by proper landmarks, and may employ
a surveyor with the necessary assistants to aid them. In
all cases the court shall direct the referees in making partition
of land to allot the share of each of the parties owning
an interest in the whole or any part of the premises sought
to be partitioned, and to locate the share of each cotenant,
so as to embrace as far as practicable the improvements made
by such cotenant upon the property; and the value of the
improvements made by the tenants in common must be excluded
from the valuation in making allotments, and the land must
be valued without regard to such improvements, in case the
same can be done without material injury to the rights and
interests of the other tenants in common owning such land;
provided, however, that when the action is for partition
of a mining claim among the tenants in common, joint tenants,
copartners or parceners thereof, the court shall, by order,
fix the time for the division of the claim by the referees,
which shall be not less than twenty nor more than forty days
from the day of the making of the order, except by consent
of all the parties in interest who have appeared in the action.
On the day designated in the order the referees shall go
upon the claim to be divided and proceed to make division
of the same as hereinafter provided, and shall continue from
day to day until the same is completed. Two or more of the
tenants in common, joint tenants, copartners or parceners
may unite together for the purposes of such division, of
which they shall give the referees written notice before
they commence the division; and all who do not unite as aforesaid,
or give notice of separate action, shall, for the purposes
of division, be deemed and held to have united. The referees
in their action shall recognize those named in the order
of the court, or their agents and attorneys in fact duly
appointed by instrument in writing, acknowledged as in cases
of conveyances of real estate, a guardian of a minor, and
a guardian entitled to the custody and the management of
the estate of an insane person or other person adjudged incapable
of conducting his own affairs, and as to the interest of
each, shall be controlled entirely by the order of the court.
At the time and place of division one of the referees, to
be elected by them, shall in the manner of public auction
offer to the party or parties who will take the least part
or portion of such mining claim in proportion to the interest
he or they may have therein, the privilege of first selecting
the place at which his portion shall be located, and upon
closing the bids the referees shall proceed to measure and
mark off, by distinct metes and bounds, to the lowest bidder,
his or their portion of such mining claim, at the place designated
by him or them, according to the terms of his or their bid.
When the referees have marked off and set apart the interest
of the lowest bidder, as provided herein, they shall offer
to the remaining parties the privilege of selection as herein
mentioned and provided, and shall upon closing the bids proceed
in the same manner to locate and mark off the portion of
the lowest bidder, and shall thereafter continue in the same
manner to receive bids and mark off the interest of the bidder
or bidders until there shall remain but one party in interest,
or parties united forming one interest. The party or parties
remaining shall become the owner or owners, as the case may
be, of the entire claim not marked off and set apart to other
parties as hereinbefore provided, in proportion to their
respective interests in the claim.
1953
78-39-14 Report of referees.
The referees must make a report of their proceedings,
specifying therein the manner in which they executed their
trust, and describing the property divided, and the shares
allotted to each party, with a particular description of
each share.
1953
78-39-15 Confirmation, modification or vacation by court - Effect of death of party before judgment.
The court may confirm, change, modify or set aside the report, and if necessary appoint new referees. Upon the report being confirmed judgment must be rendered that such partition be effectual forever, which judgment is binding and conclusive:
(1) on all persons named as parties to the action, and their legal representatives, who have at the time any interest in the property divided or any part thereof, as owners in fee, or as tenants for life or for years, or as entitled to the reversion, remainder or the inheritance of such property or of any part thereof after the determination of a particular estate therein, and who by any contingency may be entitled to a beneficial interest in the property, or who have an interest 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 of the action for partition has been given by publications; and,
(3) on all other persons claiming from such parties or persons, or either of them.
And no judgment is invalid 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.
1953
78-39-16 Tenant for years, less than ten, not affected by judgment.
The judgment does not affect tenants for years, less than
ten, of the whole of the property which is the subject of
the partition.
1953
78-39-17 Referees' expenses and fees - Apportionment.
The expenses of the referees, including those of the 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.
1953
78-39-18 Liens on undivided interests - Apportionment.
When a lien is on an undivided interest or estate of any
of the parties, such lien, if a partition is made, shall
thenceforth be a charge only on the share assigned to such
party, but such share must be first charged with its just
proportion of the costs of the partition in preference to
such lien.
1953
78-39-19 Setoff of estate for life or for years.
When a part only of the property is ordered to be sold,
if there is 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 ordered to be sold.
1953
78-39-20 Proceeds of sale of encumbered property - Disposition of.
The proceeds of the sale of the encumbered 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.
1953
78-39-21 Lienholders required to exhaust other security first.
Whenever any party to the action, 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
reduction to be made from the amount of the lien on the property
on account thereof.
1953
78-39-22 Distribution of proceeds or securities.
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 for distribution is given, all of such proceeds
and securities must be paid into court, or deposited therein,
as directed by the court.
1953
78-39-23 Determination of adverse claims.
When the proceeds of the sale of any share or parcel belonging
to persons who are parties to the action, and who are known
or unknown, 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 evidence 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.
1953
78-39-24 Sales at public auction - Notice.
All sales of real property made by referees under this
chapter must be made at public 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 fact
must be stated in the notice.
1953
78-39-25 Sales on credit - Order for.
The court must, in the order of 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, minors or
parties out of the state.
1953
78-39-26 Security for payment.
The referees may take separate mortgages and other securities,
for the whole or convenient portions of the purchase money,
on such parts 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, for the shares of a
minor, in the name of the guardian of such minor, and for
other shares, in the name of the clerk of the court and his
successors in office.
1953
78-39-27 Compensation for interest of tenant for life or years.
The person entitled to a tenancy 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,
or which the person so entitled may consent to accept in
lieu 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.
1953
78-39-28 Court determines reasonable compensation for tenant.
If consent is not given, filed, and entered as provided
in Section
78-39-27
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 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 the court for him, as the case may require.
1995
78-39-29 If tenant unknown.
If persons entitled to such estate for life or years are
unknown, the court must provide for the protection of their
rights in the same manner, as far as may be, as if they were
known and had appeared.
1953
78-39-30 Protection of vested, contingent, or future rights.
In all cases of sales when it appears that any person
has a vested or contingent or future right or estate in any
of the property sold, the court must ascertain and settle
the proportionate 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 will protect the rights and interests of the parties.
1953
78-39-31 Terms of sales - Separate sale of distinct parcels.
In all cases of sales of property the terms must be made
known at the time, and if the premises consist of distinct
farms or lots, they must be sold separately.
1953
78-39-32 Who may not be purchaser.
None of the referees nor any person for the benefit of
either of them can be interested in any purchase; nor can
a guardian of a minor party be interested in the purchase
of any real property, being the subject of the action, except
for the benefit of the minor. All sales contrary to the provisions
of this section are void.
1953
78-39-33 Report of referees to the courts of sales.
After completing a sale of the 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 court.
1953
78-39-34 Referees' deed on confirmation - Disposition of proceeds.
If the sale is confirmed by the court, an order must be
entered directing the referees to execute conveyances and
take such securities pursuant to such sale as they are hereby
authorized to do. Such order may also give directions to
them respecting the disposition of the proceeds of the sale.
1953
78-39-35 Allowance on purchase price - When interested party is purchaser.
When a party entitled to a share of the property, or an
encumbrancer entitled to have his lien paid out of the sale,
becomes a purchaser, the referees may take his receipt for
so much of the proceeds of the sale as belongs to him.
1953
78-39-36 Conveyance to be recorded - Operates as a bar.
The conveyances must be recorded in the county where the
premises are situated, and shall be a bar against all persons
interested in the property in any way, who have been named
as parties in the action, and against all such parties or
persons as were unknown, if the summons was served by publication,
and against all persons claiming under them or either of
them, and against all persons having unrecorded deeds or
liens at the commencement of the action.
1953
78-39-37 Investment of sale proceeds for nonresidents or unknown parties.
When there are proceeds of a sale belonging to an unknown
owner or to a person without the state who has no legal representative
within it, the same must be invested in bonds of the United
States, of this state or of some political subdivision thereof
for the benefit of the persons entitled thereto.
1953
78-39-38 Clerk of court to be custodian.
When the security of the proceeds of the sale is taken,
or when an investment of any proceeds is made, it must be
done, except as herein otherwise provided, in the name of
the clerk of the district court and his successors in office,
who must hold the same for the use and benefit of the parties
interested, subject to the order of the court.
1953
78-39-39 Distribution of securities to parties entitled.
When security is taken by the referees on a sale, and
the parties interested in such security, by an instrument
in writing under their hands delivered to the referees, agree
upon the shares and proportions to which they are respectively
entitled, or when shares and proportions have been previously
adjudged by the court, such securities must be taken in the
names of, and payable to, the parties respectively entitled
thereto, and must be delivered to such parties upon their
receipt therefor. Such agreement and receipt must be filed
with the clerk of the court.
1953
78-39-40 Investment of securities by court clerk - Accounting.
The clerk of the court in whose name a security is taken
or by whom an investment is made, and his successors in office,
must receive the interest and principal as it becomes due,
and apply and invest the same as the court may direct, and
must deposit with the county treasurer all securities taken,
and keep an account, in a book provided and kept for that
purpose in the clerk's office, free to inspection by all
persons, of investments and moneys received by him thereon
and the disposition thereof.
1953
78-39-41 Owelty.
When it appears that a partition cannot be made equally
among the parties according to their respective rights without
prejudice to the rights and interests of some of them, and
a partition is ordered, the courts may adjudge compensation
to be made by one party to another on account of the inequality;
but such compensation shall not be required to be made to
others by owners unknown, nor by a minor, unless it appears
that such minor has personal property sufficient for that
purpose and that his interest will be promoted thereby. And
in all cases the court has power to make compensatory adjustment
among the parties according to the principles of equity.
1953
78-39-42 Interests of minor - Payment to guardian.
When the share of a minor is sold the proceeds of sale
may be paid by the referee making the sale to his general
guardian or to the special guardian appointed for him in
the action, upon giving the security required by law or directed
by order of the court.
1953
78-39-45 Partition - Payment of costs - Enforcement of judgment.
The costs of partition, including reasonable attorneys'
fees, expended by the plaintiff or either of the defendants
for the common benefit, fees of referees and other disbursements
must be paid by the parties entitled to share in the lands
divided, in proportion to their respective interests therein,
and may be included and specified in the judgment. In that
case they shall be a lien on the several shares, and the
judgment may be enforced by execution against such shares
and against other property held by the respective parties.
When, however, litigation arises between some of the parties
only, the court may require the expenses of such litigation
to be paid by the parties thereto or any of them.
1953
78-39-46 One referee instead of three allowed by consent.
The court, with the consent of the parties, may appoint
a single referee instead of three referees in the proceedings
under the provisions of this chapter, and the single referee
when thus appointed has all the powers, and may perform all
the duties, required of the three referees.
1953
78-39-47 Lien for costs and expenses advanced by one for benefit of all.
If it appears that other actions or proceedings have been
necessarily prosecuted or defended by any one of the tenants
in common for the protection, confirmation or perfecting
of the title, or setting the boundaries, or making a survey
or surveys of the estate partitioned, the court shall allow
to the parties to the action who have paid the expenses of
such litigation or other proceedings all the expenses necessarily
incurred therein, including attorneys' fees, which shall
have accrued to the common benefit of the other tenants in
common, with interest thereon from the date of making such
expenditures, and the same must be pleaded and allowed by
the court and included in the final judgment, and shall be
a lien upon the share of each tenant, in proportion to his
interest, and shall be enforced in the same manner as taxable
costs of partition are taxed and collected.
1953
78-39-48 Abstract of title, cost of, inspection.
If it appears to the court that it was necessary to have
made an abstract of the title to the property to be partitioned
and such abstract has been procured by the plaintiff, or
if the plaintiff has failed to have the same made before
the commencement of the action and any one of the defendants
shall have such abstract afterwards made, the cost of the
abstract, with interest thereon from the time the same is
subject to the inspection of the respective parties to the
action, must be allowed and taxed. Whenever such abstract
is procured by the plaintiff before the commencement of the
action he must file with his complaint a notice that an abstract
of the title has been made and is subject to the inspection
and use of all the parties to the action, designating therein
where the abstract will be kept for inspection. But if the
plaintiff has failed to procure such abstract before commencing
the action, and any defendant shall procure the same to be
made, he shall, as soon as he has directed it to be made,
file a notice thereof in the action with the clerk of the
court, stating who is making the same and where it will be
kept when finished. The court, or the judge thereof, may
direct, from time to time during the progress of the action,
who shall have custody of the abstract.
1953
78-39-49 Interest on advances to be allowed.
Whenever during the progress of the action for partition
any disbursement shall have been made, under the direction
of the court or the judge thereof, by a party thereto, interest
must be allowed thereon from the time of making the same.
1953
