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N. Y.

196.

creditor, not a party, who has a lien on the undivided share or intere of any party. But the court may direct or dispense with such a reference, in its discretion, where a party produces a search, certified by the clerk, or by the clerk and register, as the case requires, of the county where the property is situated; and it appears therefrom, and by the affidavits, if any, produced therewith, that there is no such outstanding lien.

§ 1562. [Am'd 1887.] Where a reference is directed, as State Rep. prescribed in the last section, the referee must cause a notice to be published once in each week for six 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 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 must 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.

§ 1563. If it appears by the pleadings, or by the evidence in the action, or by the report, that there was, at the date of the order, any existing ien upon the share or interest of a party in the property, the interlocutory judgment, directing the sale, must also 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.

1564. Where money is paid into court, in a case specified in the last section, the party may apply to the court for an order directing that the money, or such part thereof as he claims, be paid to him. Upon such an application, he must produce the following papers:

1. An affidavit, made by himself, or, if a sufficient excuse is shown, by his agent or attorney, stating the true 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.

2. An affidavit, showing service of a notice of the application upon each owner of an incumbrance. Service of the notice, within the State, must 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, must 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 rea

sonable diligence, notice may be served upon him by publishing it in the newspaper printed at Albany, in which legal notices are required to be published, once in each week for the four weeks immediately preceding the application.

Upon the application, the court must make such an order as justice requires.

§ 1565. When the whole amount of the unsatisfied liens upon an undivided share, which were existing at the date of the order of reference, has been ascertained, the court must 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, must procure satisfaction thereof to be acknowledged or proved, as required by law, and must cause the incumbrance to be duly satisfied or cancelled of record. The expense of so doing must be paid out of the portion of the money in court, belonging to the party, by whom the incumbrance was payable.

§ 1566. The proceedings to ascertain and settle the liens upon an undivided share, as prescribed in the last three sections, 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.

§ 1567. 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 must consider and 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.

§ 1568. 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. In that case, the dowress is entitled to receive, from the proceeds of the sale of the whole property, a gross sum, in satisfaction of her right of dower, or to have one third of those proceeds paid into court, for the purpose of being invested for her benefit, as prescribed in the next section with respect to the dowress of an undivided share.

§ 1569. A party to an action for partition, 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, is entitled to receive, from the proceeds of the sale, a gross sum, to be fixed according to the princi

ples of law applicable to annuities, in satisfaction of his or her estate or interest. The written consent of the party to receive such a gross sum, acknowledged or proved, and certified, in like manner as a deed to be recorded, must be filed, at the time of, or before, the filing of the report of sale; otherwise, the court must direct that, out of the proceeds of the sale, which belong to the undivided share to which the estate or interest attaches, one third, in case of a dowress, and in any other case arising under this section, the entire proceeds, or such a proportion thereof as fairly represents the interest of the holder of the particular estate, be paid into court, for the purpose of being invested for his or her benefit.

§ 1570. [Am'd 1892,] Where it appears that a party to the action has an inchoate right of dower or any other future right or estate vested or contingent, or that any person or persons not in being who may by any contingency become entitled to any interest or estate in the property sold, the court must fix the proportional value of the right or estate according to the law applicable to annuities and survivorships, or set aside so much of the proceeds of sale to which the contingency attaches, and must direct that proportion of the proceeds of sale to be invested, secured or paid over in such manner as it deems best calculated to protect the rights and interests of the parties.

1571. A married woman may release to her husband her inchoate right of dower, in the property directed to be sold, by a written instrument, duly acknowledged by her and certified, as required by law with respect to the acknowledgment of a conveyance to bar her dower; which must be filed with the clerk. Thereupon, the share of the proceeds of the sale, arising from her contingent interest, must be paid to her husband.

§ 1572. If a person, entitled to an estate or interest in the property sold, is made a party as an unknown defend ant, the court must provide for the protection of his rights as far as may be, as if he was known and had appeared.

§ 1573. The court must, in the interlocutory judgment for a sale, direct the terms of credit which may be allowed for any portion of the purchase-money, of which it thinks proper to direct the investment, and for any portion of the purchase-money, which is required to be invested for the benefit of a person, as prescribed in this article.

§ 1574. The portion of the purchase-money, for which credit is so allowed, must always 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.

1575. 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.

1576. Immediately after completing the sale, the officer making it must file with the clerk his report thereof, under oath, containing a description of each parcel sold, the name of the purchaser thereof, and the price at which it was sold.

State Rep.

§ 1577. If the sale is confirmed by the court, a final 14 N. Y judgment must be entered, confirming it accordingly ; directing the officer making it to execute the proper conveyances, and take the proper securities, pursuant to the sale; and also directing concerning the application of the proceeds of the sale. Such a final judgment is binding and conclusive upon the same persons, upon whom a final judgment for partition is made binding and conclusive by section one thousand five hundred and fifty-seven of this act; and it effectually bars each of those persons, who is not a purchaser at the sale, from all right, title, and interest in the property sold.

§ 1578. [Am'd 1883.] Such a final judgment is also a bar against each person, not a party, who has, at the time when it is rendered, 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 section fifteen hundred and sixty-two of this act, 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.

§ 1579. Where final judgment, confirming a sale, is rendered, the costs of each party to the action, and the expenses of the sale, including the officers' fees, must be deducted from the proceeds of the sale, and each party's costs must be paid to his attorney. But the court may, in its discretion, 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.

§ 1580. The proceeds of a sale, after deducting therefrom the costs and expenses chargeable against them, must be awarded to the parties whose rights and interests have been sold, in proportion thereto. The sum chargeable upon any share, to satisfy a lien thereon, must be paid to the creditor, or retained, subject to the order of the court;

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and the remainder, except as otherwise prescribed in this article, must be paid, by the officer making the sale, to the party owning the share, or his legal representatives, or into court for his use.

§ 1581. [Am'd 1887, 1892.] Where a party entitled to receive a portion of the proceeds is an infant the court may direct it to be invested in permanent securities at interest in the name and for the benefit of the infant or it may direct it paid over to the general guardian of the said infant when the guardian shall have executed to such infant a bond with two sureties which shall be approved by the court, or 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, may direct the same to be paid to the general guardian of such infant upon his giving an undertaking in an amount and with sureties, satisfactory to the court for the faithful execution of his trust.

§ 1582. [Am'd 1889, 1893.] Where a person has been 124 N. Y. 500. 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 must direct his portion to be invested in permanent securities, at interest, for his benefit, until claimed by him or his legal representatives; but after the lapse of twenty-five years from the time of the payment into court, or to the treasurer of any county, of any portion of the proceeds of the sale of real property, for unknown heirs, heretofore or hereafter to be made in any action of partition, without any claim therefor having been made by any person entitled thereto, and upon there being made and presented to the court, at a special term thereof, proof, by petition or otherwise, showing to the satisfaction of the court, that due inquiry for such unknown heirs, or their representatives, has been made and that they cannot be found, and that no claim has been made for such portion of said proceeds by any person entitled thereto, proceedings shall thereupon be taken in said court, and an investigation had therein as to the heirship, death or whereabouts of such unknown heirs or their representatives, and as to the known heirs of the ancestor of such unknown heirs, the next of kin, representatives and distributees of such known heirs, and as to all persons interested in such proceeds, and their respective interests therein, and the said court shall, by an order made in the action, direct that a notice entitled in the action and signed by the petitioner, or his attorney, and directed to such unknown heirs or their representatives, and to known heirs, their next of kin, representatives, or distributees, and all persons interested in such proceeds, be served upon them by the publication

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