partitioned is encumbered by various liens, the petition should allege that these parties, naming them, claim some lien or interest in the premises, and the petition should ask that they be made parties to the action, and be required to come into the case by appropriate pleading, and assert the interest they may have therein, under penalty of being forever barred from asserting their claim or right to said real estate.

The court has the power, in such instances, to order the real estate sold, free of all liens and interests of the various parties, and distribute the proceeds of such sale to the parties in the order of their respective priorities.21

Sec. 1212. Heirs not divested by foreclosure proceedings, when.

In order to cut out all interest of all parties to real estate in foreclosure, or other judicial proceeding, it is necessary to bring such parties into the case, under penalty of forfeiting their rights. If an heir to property sold under foreclosure, or other judicial proceeding is not so made a party, he may, after the sale, compel the purchaser at such sale to allow partition.22

Sec. 1213. Trustees under a will may partition, when.

Where a will vests a trustee with title to real estate, with power to sell it and divide the proceeds, such trustee may maintain an action to partition it.23

Sec. 1214. The order of partition.

After the interests of all parties have been ascertained, the court is required to make an order specifying the interests of

title to the entire property, unless he first establishes his title and right of possession to a portion of the property in an action for the recovery of real property, or joins such cause of action with his action for partition. Chandler v. Richardson, 65 Kan. 152, 69 Pac. 168.

21 Hagen v. Webb, 65 Kan. 38, 68 Pac. 1,096.

22 Curtis v. Parker, 29 Kan. 93. 23 Noecker v. Noecker, 66 Kan. 347, 71 Pac. 815.

the respective parties, and directing partition to be made accordingly.24

Sec. 1215. The commissioners in partition.

Upon making such order the court must appoint three commissioners to make partition into the requisite number of shares.25

Sec. 1216. The fees of commissioners.

Each commissioner for partition of real estate is entitled to receive for each day two dollars; traveling fees the same as are allowed to sheriffs; but this action does not limit the right of the parties to agree on a higher rate of compensation for commissioners in any case.2

26

Sec. 1217. The duty of commissioners as to allotment of special tracts of land.

For good and sufficient reasons appearing to the court, the commissioners may be directed to allot particular portions to any one of the parties:27

Sec. 1218. The oath of the commissioners.

Before entering upon their duties, such commissioners are required to take and subscribe an oath that they will perform their duties faithfully and impartially, and to the best of their ability.28

Sec. 1219. The report of the commissioners in partition. The commissioners must make partition of the property among the parties according to their respective interests, if

24 Snyder, 6,139; Wilson, 4,805; Kansas, 4,721 (1889).

25 Snyder, 6,140; Wilson, 4,806; Kansas, 4,722 (1889).

28 Snyder, 3,408; Wilson, 3,034; Act of March 12, 1887.

27 Snyder, 6,141; Wilson, 4,807; Kansas, 4,723 (1889).

28 Snyder, 6,142; Wilson, 4,808; Kansas, 4,727 (1889).

such partition can be had without manifest injury. But if such partition cannot be made, the commissioners are required to make a valuation and appraisement of the property, and to make a report of their proceedings to the court forthwith.29

Sec. 1220. The report may be set aside, when.

Any party may file exceptions to the report of the commissioners, and the court may, for good cause, set aside such report, and appoint other commissioners, or refer the matter back to the same commissioners.30

Sec. 1221. Judgment upon the report of the commissioners. If partition be made by the commissioners and no exceptions are filed to their report, the court will render judgment that such [petition] be and remain firm and effectual forever.31

Sec. 1222. Party may elect to take at appraisement, when.

If partition cannot be made, and the property has been valued and appraised, any one or more of the parties may elect to take the same at the appraisement, and the court may direct the sheriff to make a deed to the party, or parties, so electing, on payment to the other parties of their proportion of the appraised value.32

Sec. 1223. The property to be sold, when.

If none of the parties elect to take the property at its valuation, or if several of the parties elect to take the same

29 Snyder, 6,143; Wilson, 4,809; Kansas, 4,725 (1889).

30 Snyder, 6,144; Wilson, 4,810; Kansas, 4,726 (1889).

31 Snyder, 6,145; Wilson, 4,811; Kansas, 4,727 (1889).

32 Snyder, 6,146; Wilson, 4,812; Kansas, 4,728 (1889). Where the commissioners report that partition

cannot be made without manifest injury, it is error to direct a sale of the land until the parties interested have been afforded reasonable time to elect to take the land at its appraised value, the statut fixing no time within which su election shall be made. Morris ". Tracy, 58 Kan. 137, 48 Pac. 57!.

at the valuation, in opposition to each other, the court must make an order directing the sheriff of the county to sell the same in the same manner as in sales of real estate on execution, but no sale can be made at less than two-thirds of the valuation placed on the property by the commissioners.33

Sec. 1224. The sheriff's return and deed.

The sheriff shall make return of his proceedings to the court, and if the sale made by him be approved by the court, the sheriff must then execute a deed to the purchaser, upon the payment of the purchase money, or securing the same to be paid in such manner as the court may direct.31

Sec. 1225. Apportionment of attorneys' fees and taxing costs.

The court making partition must tax the costs, attorneys' fees and expenses, which may accrue in the action, and apportion the same among the parties according to their respective interests, and may award execution therefor as in other cases. 35

Where the property cannot be divided by metes and bounds, and it is sold, out of the proceeds of the sale there must be paid the costs of the proceeding, including attorney fees, before the proceeds may be divided among the heirs.3o

Sec. 1226. The powers of the court in partition.

The court has full power to make any order not inconsistent with the provisions of this article, that will be necessary to make a just and equitable partition between the parties and secure their respective interests.37

33 Snyder, 6,147; Wilson, 4,813; Kansas, 4,729 (1889).

34 Snyder, 6,148; Wilson, 4,814; Kansas, 4,730 (1889).

35 Snyder, 6,149; Wilson, 4,815; Kansas, 5,115 (1901), identical.

36 Sarbach v. Newell, 35 Kan. 180, 10 Pac. 529.

37 Snyder, 6,150; Wilson, 4,816; Kansas, 4,732 (1889).

Sec. 1227. The doctrine of lis pendens as applied to partition suits.

The doctrine of lis pendens applies to partition suits as well as other actions, but a purchaser pendente lite is only affected to the extent of the decree and subsequent proceedings therein, and where the suit, instead of terminating in a judicial sale, provides for one of the parties acquiring the title by sheriff's deed, at its appraised value, a mortgagee may assert his mortgage lien acquired while the action is pending.3

38

Sec. 1228. Form for petition by guardian for partition.

an

County, Oklahoma, and

duly appointed guardian of the person and estate of infant, by the probate court of thereupon duly qualified and entered upon the discharge of the duties of her office, and that this action is brought by her as such guardian.

Plaintiff says that her said ward is a grandchild of

County, Oklahoma, deceased, who died intestate that the last will and testa

late of on the

day of

ment of said

court of said

19-;

deceased, was duly proved in the probate County, where the said decedent was domi

day of

ciled at the time of his death, and was duly admitted to probate and record on the 19. A copy of said will is hereto attached, marked Exhibit "A" and made a part of this petition; that said decedent, by the terms of his last will

38 Tidball v. Schmeltz, 77 Kan. 440, 94 Pac. 794.