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| Home > Statutes > Usa Missouri |
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USA Statutes : missouri
Title : STATUTORY ACTIONS AND TORTS
Chapter : Chapter 528 Partition Suits
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Whenever under or through any deed, conveyance or will,
heretofore or hereafter made, an estate for life, or a conditional or
contingent or other estate of uncertain vesting or duration is created,
or provided for in lands with remainder over or reversion, whether
absolute, contingent or conditional, or an estate in lands is created, or
provided for, to commence or to vest in the future, either absolute,
contingent or conditional, any person or persons holding the estate or an
interest in the estate, carrying the right of immediate use and enjoyment
of such lands, may sue in equity for sale of such lands or any of the
same upon the ground that the life or other estate of immediate enjoyment
is burdensome and unprofitable or that the cost of paying the taxes and
assessments thereon and holding, maintaining, caring for and preserving
the lands from waste, or injury, and deterioration, exceeds the
reasonable value of the rents and profits thereof, and that a greater
income can probably be had from proceeds of a sale thereof invested in
bonds of the United States or of Missouri or some municipality or school
district thereof or first lien mortgage loans upon lands situate in this
state; and if upon trial of such case the court finds the allegations of
the petition in such suit to be true it shall order, adjudge and decree
that sale of such lands in partition shall be made in the same manner as
other sales of lands not susceptible of division in kind, are or may be
by law provided to be made; and, the sale proceeds, after paying the
costs and expenses of the suit and sale therefrom and the commuted value
of any estate as may be commutable and so requested to be by the owner or
owners thereof, as in other suits in partition, shall be invested and
administered by the circuit clerk as directed by the court, in the
court's discretion, as a trust fund for the parties in interest and
persons who may become such and the income to accumulate or be
distributed according to the respective estates of the parties interested
or who may become interested therein. (RSMo 1939 § 1710, A.L. 1997 S.B.
387)
Prior revision: 1929 § 1546
Effective 7-7-97
1. All persons in being who are vested, and all persons in being
who might or would have become vested, with an estate in said lands in
case the event, condition, contingency or lapse of time upon which the
same may be limited to vest in such person had happened or occurred at or
immediately prior to the commencement of such suit, shall be made parties
plaintiff or defendant therein; and no such person not party thereof
shall be bound thereby; but the rule of representation of persons not in
being by the person or persons of the same class in estate or related in
estate in respect to the lands shall apply and all persons not in being
shall be bound in such cases by such rule and as to and against all such
persons both those in being and those not in being such sale shall carry
full title to said lands.
2. In any case provided in this chapter to be brought if the petition
shall allege or it shall appear to the court at any time pending the suit
that an interest or estate in the land constituting the subject matter of
the suit might vest in a person or persons not in being and who may not
be so representable by persons in being of the same class or related in
estate, then the court shall appoint some disinterested attorney, member
of its bar, to represent and protect as a friend of the court the
interests of such possible persons, and all such shall be bound by the
result of the suit. (RSMo 1939 § 1711)
Prior revision: 1929 § 1547
In all cases where lands, tenements or hereditaments are held in
joint tenancy, tenancy in common, or coparcenary, including estates in
fee, for life, or for years, tenancy by the curtesy and in dower, it
shall be lawful for any one or more of the parties interested therein,
whether adults or minors, to file a petition in the circuit court of the
proper county, asking for the admeasurement and setting off of any dower
interest therein, if any, and for the partition of the remainder, if the
same can be done without great prejudice to the parties in interest; and
if not, then for a sale of the premises, and a division of the proceeds
thereof among all of the parties, according to their respective rights
and interests. (RSMo 1939 § 1709)
Prior revisions: 1929 § 1545; 1919 § 1995; 1909 § 2559
(1978) Joint tenants have an absolute right of partition and fact that
title was in joint tenancy with right of survivorship was not in itself
an implication of an agreement not to partition. Stout v. Stout (A.), 564
S.W.2d 89.
Such petition shall be filed in the circuit court of the county
in which such lands, tenements or hereditaments lie; but if the same
shall lie in two or more counties, whether in detached parcels or
otherwise, said petition shall be filed in the circuit court of the
county in which any portion of such premises is situate, and a majority
of the parties entitled thereto reside; and in case a majority of said
parties do not reside in any such county, or all of them are nonresidents
of the state, the proceedings for partition shall be had in the circuit
court of that county in which an equal or greater part of such premises
may be. (RSMo 1939 § 1712)
Prior revisions: 1929 § 1548; 1919 § 1996; 1909 § 2560
(1964) This provision does not authorize joinder of separate and distinct
partition actions in one petition where all land involved in one action
is located in one county and all land involved in the separate action is
located in a different county and where the parties affected by the two
partitions do not claim under the same document or documents in both
actions and all the parties to the two actions are not the same.
Buschmeyer v. Eikermann (Mo.), 378 S.W.2d 468.
The petition shall particularly describe the premises sought to
be divided or sold, and shall set forth the names, rights and title of
all parties interested therein, so far as the same can be stated,
including persons entitled to the reversion, remainder or inheritance,
and of every person who, upon any contingency, may be or become entitled
to any beneficial interest in the premises. (RSMo 1939 § 1713)
Prior revisions: 1929 § 1549; 1919 § 1997; 1909 § 2561
Every person having any interest in such premises, whether in
possession or otherwise, shall be made a party to such petition. (RSMo
1939 § 1714)
Prior revisions: 1929 § 1550; 1919 § 1998; 1909 § 2562
In case one or more of such parties, or the share or quantity of
interest of any of the parties be unknown to the petitioner, or be
uncertain or contingent, or the ownership of the inheritance shall depend
upon an executory devise, or the remainder shall be contingent, so that
such parties cannot be named, the same shall be so stated in the
petition. (RSMo 1939 § 1715)
Prior revisions: 1929 § 1551; 1919 § 1999; 1909 § 2563
Any person having an interest in such premises, whether the same
be present or future, vested or contingent, though not made a party in
the petition, may appear and be made a party on application for that
purpose, accompanied by an affidavit of such interest. (RSMo 1939 § 1716)
Prior revisions: 1929 § 1552; 1919 § 2000; 1909 § 2564
All pleadings and proceedings under this chapter shall be had as
in ordinary civil actions. (RSMo 1939 § 1717)
Prior revisions: 1929 § 1553; 1919 § 2001; 1909 § 2565
The conservators of the estates of minors and disabled persons,
appointed according to law, are hereby authorized, in behalf of their
respective protectees, to do and perform any matter or thing respecting
the division of any lands, tenements or hereditaments, as herein
directed, which shall be binding on such protectee, and deemed as valid
to every purpose as if the same had been done by such protectee after his
disabilities are removed. (RSMo 1939 § 1718, A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 § 1554; 1919 § 2002; 1909 § 2566
No partition or sale of lands, tenements or hereditaments,
devised by any last will, shall be made under the provisions of this
chapter, contrary to the intention of the testator, expressed in any such
will. (RSMo 1939 § 1721)
Prior revisions: 1929 § 1557; 1919 § 2005; 1909 § 2569
Upon judgment of partition in proceedings commenced under this
chapter, where the lands, tenements or hereditaments, or any portion
thereof, sought to be divided as herein directed, shall have descended to
any of the parties in interest, and the court shall not be satisfied
either that the estate from which the same has descended has been finally
settled, and all claims against the same fully discharged, or that the
personal property, or other real property not already partitioned,
belonging to such estate, is more than sufficient to pay all claims and
demands against the same, the order of distribution shall not apply to
nor take effect upon any of the lands, tenements or hereditaments
allotted, or the share of the proceeds of any sale adjudged to the
parties whose interest shall have so descended, until such estate shall
have been finally settled and all claims against the same fully
discharged; and until such final settlement, the interest of all parties
in such lands, tenements or hereditaments, or in the proceeds of sale in
cases where sale has been ordered, shall remain and be subject to the
claims against the same. (RSMo 1939 § 1722)
Prior revisions: 1929 § 1558; 1919 § 2006; 1909 § 2570
If any of the parties, duly notified according to law, shall not
appear and answer within the time allowed for that purpose, the default
shall be entered, but the petitioners shall, nevertheless, exhibit proofs
of their title. (RSMo 1939 § 1723)
Prior revisions: 1929 § 1559; 1919 § 2007; 1909 § 2571
The court shall ascertain from the evidence, in case of a
default, or from the confession of the parties, if they appear, or from
the verdict by which any issue of fact shall be determined, and shall
declare the rights, titles and interests of the parties to such
proceedings, petitioners as well as defendants, and determine such
rights, and give judgment that partition be made between such of them as
shall have any right therein accordingly. (RSMo 1939 § 1724)
Prior revisions: 1929 § 1560; 1919 § 2008; 1909 § 2572
(1974) Counsel for plaintiff acts for all parties and his fees are to be
paid by both plaintiffs and defendants in proportion to their interest.
All persons having an interest must be made parties. Billinger v. Jost
(A.), 510 S.W.2d 57.
It shall be lawful for the court, in rendering judgment of
partition, to order and direct that any number of shares be set off
together in one parcel, and that the residue be divided among the other
parties, according to their several rights. (RSMo 1939 § 1725)
Prior revisions: 1929 § 1561; 1919 § 2009; 1909 § 2573
If partition be made according to such judgment, and the report
of the commissioners, as herein directed, be confirmed, the parcel so set
off to several parties shall thereafter be held and enjoyed by them, in
like portions and in the same estate as they before had in the whole.
(RSMo 1939 § 1726)
Prior revisions: 1929 § 1562; 1919 § 2010; 1909 § 2574
Whenever it shall appear in any proceeding in partition that
there are parties claiming the same portion adversely to each other, the
court may either decide upon such adverse claims, or, in its discretion,
direct the share or shares so in controversy to be set off and allotted,
subject to the claims of the parties in controversy against each other.
(RSMo 1939 § 1727)
Prior revisions: 1929 § 1563; 1919 § 2011; 1909 § 2575
Whenever any judgment of partition shall be rendered, the court
shall appoint not less than three nor more than five competent persons as
commissioners, residents of the county, or any of the counties in which
the premises to be divided shall be situated, to admeasure and set off
the dower, if any, and to make the partition so adjudged, according to
the respective rights and interests of the parties, as the same were
ascertained and determined by the court, and shall designate the part or
share, if any, which shall remain undivided. (RSMo 1939 § 1728)
Prior revisions: 1929 § 1564; 1919 § 2012; 1909 § 2576
In case of the death, resignation, neglect or refusal to act, of
any of the commissioners appointed by virtue of this chapter, before the
duties, trust and services hereby required of them shall be completed,
the court, or judge thereof in vacation, may appoint another commissioner
or commissioners, who shall be vested with the like power and authority
as if he or they had been originally appointed. (RSMo 1939 § 1729)
Prior revisions: 1929 § 1565; 1919 § 2013; 1909 § 2577
The commissioners appointed in pursuance of this chapter shall
be entitled to receive for every day they shall be employed in effecting
such division such sum or compensation as may be determined and fixed by
the court; and the chainmen and markers, aiding in any survey authorized
by this chapter, shall be entitled to receive for their services such sum
or compensation as may be fixed by the court, which sum or compensation
shall be reported by the commissioners and taxed and collected as other
costs. (RSMo 1939 § 1730)
Prior revisions: 1929 § 1566; 1919 § 2014; 1909 § 2578
The commissioners, before proceeding to the execution of their
duties, shall make affidavit, before some officer qualified to administer
oaths, honestly and impartially to execute the trust reposed in them,
which shall be returned and filed with their report, and shall give at
least five days' notice to each party to the suit, or his conservator or
attorney, of the time when they will proceed to the performance of their
duties; and if any such party do not reside in any county in which any of
the land is situate, and have no conservator or attorney therein, notice
to such party may be served by posting same in the office of the clerk of
the court wherein the suit is pending at least five days before such
time. (RSMo 1939 § 1731, A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 § 1567; 1919 § 2015; 1909 § 2579
The commissioners shall, as soon as may be, proceed to perform
their duties, according to the judgment of the court:
(1) Admeasuring and setting off the dower of any widow interested
therein; and
(2) To divide and set off, by proper metes and bounds, each share of the
several persons interested, according to their respective titles. (RSMo
1939 § 1732)
Prior revisions: 1929 § 1568; 1919 § 2016; 1909 § 2580
If it shall appear to the commissioners, or a majority of them,
that such assignment of dower, if any, and partition of the premises
cannot be made without great prejudice to the owners, they shall make
report of such facts to the court, in writing; or if the judgment of the
court can be executed only as to a part of such premises, they shall make
division of such part, and report the same to the court, together with
the residue which, in their opinion, is not susceptible of division.
(RSMo 1939 § 1733)
Prior revisions: 1929 § 1569; 1919 § 2017; 1909 § 2581
In assigning dower and making partition under this chapter, the
commissioners shall divide the lands and tenements, and allot the several
portions and shares thereof to the respective parties, quantity and
quality relatively considered by them; and where the lands are in
detached parcels or otherwise, the dower estate, if any, shall be set
apart in one body, as near as practicable. (RSMo 1939 § 1734)
Prior revisions: 1929 § 1570; 1919 § 2018; 1909 § 2582
Whenever in the opinion of the commissioners, in any case of
partition or order of sale, it will be to the interest of the parties to
divide the lands into lots, and lay out streets, avenues, lanes and
alleys, they may cause the same to be done, and in that case shall return
with their report a plat of the land so laid out, which report shall be
subject to the rejection or confirmation of the court, as in other cases.
(RSMo 1939 § 1735)
Prior revisions: 1929 § 1571; 1919 § 2019; 1909 § 2583
The commissioners shall make a full and ample report of their
proceedings in writing, signed by them, or a majority of them, specifying
therein the manner of executing their trust, and describing the lands
divided and the shares allotted to each party, with the quantity of each
share, the boundaries, courses and distances and the items of their
charges. (RSMo 1939 § 1736)
Prior revisions: 1929 § 1572; 1919 § 2020; 1909 § 2584
The report shall be proved or acknowledged before some officer
authorized to take the proof of deeds, in the same manner that deeds are
required to be proved or acknowledged, to entitle them to be recorded,
and shall be filed in the office of the clerk of the court. (RSMo 1939 §
1737)
Prior revisions: 1929 § 1573; 1919 § 2021; 1909 § 2585
Upon good cause shown by any of the parties, the court may set
aside the report, and appoint new commissioners as often as may be
necessary, who shall proceed in like manner as heretofore directed. (RSMo
1939 § 1738)
Prior revisions: 1929 § 1574; 1919 § 2022; 1909 § 2586
If no such cause be shown, the report shall be confirmed, and
final judgment rendered thereon, which judgment shall be binding and
conclusive upon all parties to the proceedings, and all persons claiming
under them. (RSMo 1939 § 1739)
Prior revisions: 1929 § 1575; 1919 § 2023; 1909 § 2587
The clerk of the court shall make out a certified copy of such
report and of the judgment and confirmation and cause the same to be
recorded in the office of the recorder of each county in which any of the
estate thus divided is situated, the costs of such certified copy and
recording to be taxed as other costs in the case. (RSMo 1939 § 1740)
Prior revisions: 1929 § 1576; 1919 § 2024; 1909 § 2588
Where the commissioners have, in pursuance of the provisions of
section 528.270, laid out the land into lots, streets, lanes or alleys,
and have returned a plat of the land so divided, and their report is
confirmed, a copy of the plat shall be filed in the office of the
recorder of the county, in like manner and with like effect as in case of
plats of towns or additions made and filed by the proprietor. (RSMo 1939
§ 1741)
Prior revisions: 1929 § 1577; 1919 § 2025; 1909 § 2589
If the commissioners so appointed shall report to the court that
the lands, tenements or hereditaments, or any lot, tract or portion
thereof, are so situated that an assignment of dower, if any, and
partition thereof, cannot be made without great prejudice to the owners,
the court may, if satisfied that such report is just and correct, make an
order that the sheriff sell the premises situate in his county, or any
portion thereof, which is reported insusceptible of division, and
including any dower interest therein, at public auction to the highest
bidder. (RSMo 1939 § 1742)
Prior revisions: 1929 § 1578; 1919 § 2026; 1909 § 2590
Whenever the commissioners report that they have set off a part
only of the shares, according to the division ordered, and such report is
confirmed, only that part of the land which is not set off to any party
shall be sold and the proceeds apportioned among the parties to whom no
land has been allotted; and the costs of the proceedings shall be paid by
the parties in proportion to their respective shares in the land which is
the subject of the proceedings. (RSMo 1939 § 1743)
Prior revisions: 1929 § 1579; 1919 § 2027; 1909 § 2591
When, in any report of commissioners, setting off a parcel, the
subject of the adverse claims of different parties shall be confirmed, it
shall be a bar to the claims of such parties to the residue of the lands,
or the moneys arising thereon, if sold, and shall vest the part allotted
subject to the controversy, in the party who shall have title to the
share or shares represented in the allotment. (RSMo 1939 § 1744)
Prior revisions: 1929 § 1580; 1919 § 2028; 1909 § 2592
The order of sale to be made in pursuance of the provisions of
this chapter shall not specify the day of sale; and the clerk shall,
without delay, deliver a duly certified copy thereof to the sheriff, who
shall in due time proceed to advertise and sell; and the sale shall take
place during some day of the term of the court, and be governed by the
same regulations prescribed by law for sales of real estate under
execution, notice thereof being given in the same manner by the sheriff
as provided by law for such sales; provided, that where a tract or parcel
of land is cut or divided by county lines, the sale of the whole thereof
shall be made by the sheriff or commissioner in that county wherein the
greater part of such land is situated; but in such cases he shall give
notice of such sale in the other county by posting up at least five
printed handbills in as many public places in such county. (RSMo 1939 §
1745)
Prior revisions: 1929 § 1581; 1919 § 2029; 1909 § 2593
Where any such order of sale has been made, and the sale has
failed to take place by reason of the failure of the term of court, or
other cause, the court, or clerk thereof in vacation, shall renew such
order of sale generally, without specifying any time for sale; and the
clerk shall, without delay, deliver a certified copy of such order to the
sheriff, who shall then proceed to advertise to sell in conformity with
section 528.370. (RSMo 1939 § 1746)
Prior revisions: 1929 § 1582; 1919 § 2030; 1909 § 2594
If the premises consist of distinct buildings, farms, tracts or
lots of land, they shall be sold separately; or when any tract of land or
lot can be divided for the purpose of sale, with advantage to the parties
interested, it may be so divided and sold in parcels. (RSMo 1939 § 1747)
Prior revisions: 1929 § 1583; 1919 § 2031; 1909 § 2595
1. The sheriff shall take the notes and bonds for the purchase
money, collect and pay over the same according to the order of the court,
and make the deed to the purchaser, which shall be acknowledged or proved
and recorded in the same manner as conveyances made by the sheriff of
lands sold under execution, and shall be a bar against all persons
interested in such premises who shall have been parties to the
proceedings, and against all persons claiming from such parties, or
either of them.
2. If the sheriff shall, before execution and acknowledgment of the deed
to the purchaser, die, or be removed from office, or remove from the
county where the land is situate, then the court having jurisdiction of
the cause wherein partition was adjudged shall, on the application of the
purchaser, order the successor of the sheriff making the sale, in office
at the time of making such application, to execute and acknowledge the
deed to the purchaser, and such successor is hereby fully empowered to do
so; and the deed, executed and acknowledged by such successor, shall have
the same force and effect in law and equity as though executed and
acknowledged by the sheriff making the sale.
3. If, after confirmation of the sale of any real estate sold under the
provisions of this chapter, and before execution and acknowledgment of
the deed therefor by the sheriff to the purchaser, the purchaser shall
sell and assign his whole interest in the land purchased by him, then the
court having jurisdiction of the cause wherein partition was adjudged
shall, on application of the assignee and the production of unequivocal
proof of the fact of sale and assignment, order the sheriff or his
successor in office at the time of such application, to execute and
acknowledge the deed to such assignee, and the sheriff or his successor
is hereby fully empowered to do so; and the deed so executed and
acknowledged shall have the same force and effect in law and equity as
though executed and acknowledged by the sheriff to the original purchaser.
4. If, in case of the sale of any lands under the provisions of this
chapter, the purchaser shall die before the execution and acknowledgment
of the deed therefor, the court having jurisdiction of the cause wherein
partition was adjudged shall on proof of the fact of the purchaser's
death, submitted by his widow and heirs, or any or either of them, or by
his executor or administrator, order the sheriff making the sale, or his
successor, at the time such proof is submitted, to execute and
acknowledge the deed to the heirs of decedent, subject to the dower
interest therein of his widow, if there be one, and such deed shall be
executed and acknowledged by the sheriff or such successor accordingly.
(RSMo 1939 § 1748)
Prior revisions: 1929 § 1584; 1919 § 2032; 1909 § 2596
Whenever it shall be shown to the circuit court by motion in
writing, verified by affidavit, that any sheriff has executed and
delivered to the purchaser a defective deed in partition, or one which
failed to correctly describe the land actually sold, and that since such
defective conveyance no other person has obtained adverse and intervening
rights which would be prejudiced, then the court shall order the sheriff
who made such defective conveyance, or his successor in office, to
execute, acknowledge and deliver a supplemental deed for said land to the
original purchaser, his grantee, or to the person or persons claiming by,
through or under him, which supplemental deed shall recite the facts upon
which it is based, shall be evidence thereof, and shall have the same
force and effect in law and equity as if executed and acknowledged on the
date of such defective deed. This provision shall apply to defects and
mistakes in all such conveyances, whether made prior or subsequent to
this enactment. (RSMo 1939 § 1749)
Prior revisions: 1929 § 1585; 1919 § 2033; 1909 § 2597
Every sale made by virtue of this chapter shall be a firm and
effectual bar to any widow who may be a party to the proceedings, against
any dower or right of dower which she might have had in and to the
premises sold. (RSMo 1939 § 1750) Prior revisions: 1929 § 1586; 1919 §
2034; 1909 § 2598
The sheriff and his sureties shall be responsible on his
official bond for his acts in all cases under this chapter, and for the
notes, bonds or money collected or received by him, and he may be
compelled to account for and pay over the same, in the same manner as in
cases of money collected on execution. (RSMo 1939 § 1751)
Prior revisions: 1929 § 1587; 1919 § 2035; 1909 § 2599
If any sale be made by any sheriff before he goes out of office,
and the business be not completed when he ceases to be sheriff, he may do
all subsequent acts, collect and pay over the money, and make the deed,
in the same manner as if he continued to be sheriff, unless the court
shall by order direct the business to be transferred to the next sheriff;
in which case all acts remaining to be done by the sheriff, at the date
of such order, shall be done by the sheriff then in office. (RSMo 1939 §
1752)
Prior revisions: 1929 § 1588; 1919 § 2036; 1909 § 2600
After completing the sales, the sheriff shall report his
proceedings to the court, with a description to the different parcels of
the land sold, the name of the purchaser and the price bid, which report
shall be filed in the court; he shall also file in the clerk's office an
accurate statement of all moneys received, and all costs and expenses
paid or incurred in the transaction of the business including the costs
for extending or compiling an abstract or abstracts of title to such land
or lands, and the court shall allow such as are legal and reasonable.
(RSMo 1939 § 1753)
Prior revisions: 1929 § 1589; 1919 § 2037; 1909 § 2601
The court shall direct the payment by the sheriff of all the
costs and expenses of the proceedings, together with the present value of
any dower interest, to the parties entitled thereto, and the remainder to
the parties in interest, their conservators or legal representatives,
according to their respective rights, as ascertained by the judgment of
the court. (RSMo 1939 § 1754, A.L. 1983 S.B. 44 & 45)
Prior revisions: 1929 § 1590; 1919 § 2038; 1909 § 2602
In all cases of adverse claims to any one or more shares, the
money arising from sales which belongs to the owner of such share or
shares shall be retained by the sheriff of the county, and by him held
subject to the future order of the court. (RSMo 1939 § 1755)
Prior revisions: 1929 § 1591; 1919 § 2039; 1909 § 2603
Any party to the proceeding in partition claiming such moneys as
owner of the premises sold may file his petition in the office of the
clerk of the court, setting forth the nature of his claim in all its
particulars, and the name and residence, if known, of the other party
claiming as aforesaid, and praying an order for the payment of the money
to him; which petition shall be verified by the affidavit of the
petitioner or some credible person. (RSMo 1939 § 1756)
Prior revisions: 1929 § 1592; 1919 § 2040; 1909 § 2604
Upon the filing of such petition, the clerk shall issue a
summons, directed to the sheriff of each county in this state in which
any defendant resides, with a copy of the petition, which shall be served
as in ordinary civil cases. (RSMo 1939 § 1757)
Prior revisions: 1929 § 1593; 1919 § 2041; 1909 § 2605
The answer shall state the nature of the defendant's claim, in
all its particulars, shall be verified by the affidavit of the defendant,
or some other credible person, and may be filed in vacation; and the
court shall cause all questions of fact presented by the petition and
answer to be tried as other questions of fact. (RSMo 1939 § 1758)
Prior revisions: 1929 § 1594; 1919 § 2042; 1909 § 2606
A judgment by default may be rendered against any defendant who
does not appear and answer to the command of the summons or publication,
and payment of the money ordered accordingly. (RSMo 1939 § 1759)
Prior revisions: 1929 § 1595; 1919 § 2043; 1909 § 2607
When an answer is filed and the facts determined, the court
shall proceed to adjudge and order the payment of the money to the party
entitled. (RSMo 1939 § 1760)
Prior revisions: 1929 § 1596; 1919 § 2044; 1909 § 2608
The judge of the court in which any suit under this chapter may
be brought shall allow a reasonable fee to the attorney or attorneys
bringing the suit, and may in like manner make a reasonable allowance to
guardian ad litem when appointed, which fee and allowances shall be taxed
and paid as other costs in the case. (RSMo 1939 § 1761)
Prior revisions: 1929 § 1597; 1919 § 2045; 1909 § 2609
A majority of the commissioners, in all cases, shall have power
to act; and all sales made under the foregoing provisions shall be made
by the sheriff of the county in which such lands, tenements or
hereditaments, or any portion of them, may be situate, or by a special
commissioner appointed by the court for that purpose. (RSMo 1939 § 1762)
Prior revisions: 1929 § 1598; 1919 § 2046; 1909 § 2610
If, in any case, from the nature and amount of the property
sought to be divided, and the number of the owners it shall be apparent
to the court that the assignment of dower, if any, and partition thereof,
in kind, cannot be made without great prejudice to the owners, an order
of sale may be made, without the appointment of commissioners; and if the
sale be made by a special commissioner, he may, if he deem it beneficial
to the parties interested, divide the land ordered to be sold into lots,
and lay out avenues, streets, lanes or alleys, and in such case he shall
sell only the lots, and not such parts as were laid out in avenues,
streets, lanes or alleys; in case the commissioner subdivides, it shall
be his duty, before sale, to file in the court a plat of such
subdivisions. (RSMo 1939 § 1763)
Prior revisions: 1929 § 1599; 1919 § 2047; 1909 § 2612
In every case where the commissioners may divide any tract of
land into lots, and lay out avenues, streets, lanes or alleys, as
provided by section 528.270, the court may order the sale of such lots,
if, in its opinion, the sale of the same would be beneficial to the
parties in interest, and divide the proceeds among the parties in
interest, according to their respective rights therein. (RSMo 1939 § 1764)
Prior revisions: 1929 § 1600; 1919 § 2048; 1909 § 2618
Every special commissioner, appointed under the provisions of
this chapter before entering upon the discharge of the duties of his
office, shall file with the clerk of the court in which the suit for
partition is pending his bond, payable to the state, with such sureties
as may be approved by the court, in a sum sufficient to indemnify the
parties, conditioned that he will faithfully discharge the duties of his
said office, and account for and pay over, according to the order of the
court, to the parties entitled thereto, all such sums of money as may
come to his possession as such commissioner. (RSMo 1939 § 1765)
Prior revisions: 1929 § 1601; 1919 § 2049; 1909 § 2614
Every special commissioner appointed under the provisions of
this chapter shall perform the same duties, and with like effect, as are
enjoined by this chapter upon sheriffs; and in the performance of said
duties he shall be governed by the same rules applicable to sheriffs in
like cases, and he shall receive such compensation for his services as
may in each case be fixed by the court. (RSMo 1939 § 1766)
Prior revisions: 1929 § 1602; 1919 § 2050; 1909 § 2615
All sales of real estate by such commissioner, or any sheriff,
shall be at the courthouse door, and in term time of the circuit court or
county commission, as may be directed by the order of the court;
provided, that in all cities in this state now or hereafter containing
one hundred thousand inhabitants or more, such sales shall be on the
floor of the real estate exchange or at the courthouse door, as may be
directed by the order of the court. (RSMo 1939 § 1767)
Prior revisions: 1929 § 1603; 1919 § 2051; 1909 § 2616
1. The sheriff or commissioner making a sale under the
provisions of this chapter shall not take any negotiable notes in payment
of deferred sums, but such notes shall express on their face that they
are given to the sheriff or commissioner as trustee in partition, and
shall impart notice to all persons of such trust.
2. When an entire property is ordered to be sold, the sheriff or
commissioner making a sale under the provisions of this chapter shall
take, from any party adjudged to have any right in the said property
pursuant to section 528.160, cash, cashier's check, money order or other
negotiable instrument acceptable to the sheriff or as provided by local
court rule, in an amount equal to the difference between the total amount
of the bid and the value of the interest of the bidder therein so that
the said bidder shall receive a credit for the value of the interest.
(RSMo 1939 § 1768, A.L. 1997 S.B. 387)
Prior revisions: 1929 § 1604; 1919 § 2052; 1909 § 2617
Effective 7-7-97
As a compensation for his services in making a sale of real
estate under the provisions of this chapter by order of court for the
purpose of partition, the sheriff shall receive a commission on the
amount of sales not exceeding two percent on the first one thousand
dollars, and one percent on all sums over that amount and under five
thousand dollars, and one-half of one percent on all sums over that
amount. (RSMo 1939 § 1769)
Prior revisions: 1929 § 1605; 1919 § 2053; 1909 § 2618
Any one or more of two or more joint owners of personal property
may file a petition in the circuit court for a partition or a sale and
partition of the proceeds thereof, in the same manner as suits may be
instituted for the partition and sale of real estate, and like
proceedings had thereunder, as near as may be, as provided in cases for
the partition of real estate. (RSMo 1939 § 1770, A.L. 1999 S.B. 1, et al.
merged with S.B. 112)
Prior revisions: 1929 § 1606; 1919 § 2054; 1909 § 2619
Orders of sale, under judgments rendered by virtue of the
provisions of sections 528.620 to 528.640, shall be executed in like
manner as sales of personal property under execution, and the officer to
whom such orders are directed shall have the same rights thereunder.
(RSMo 1939 § 1771)
Prior revisions: 1929 § 1607; 1919 § 2055; 1909 § 2620
All suits brought under the provisions of sections 528.620 and
528.630 shall be tried at the return term of the court, unless continued
for cause. (RSMo 1939 § 1772)
Prior revisions: 1929 § 1608; 1919 § 2056; 1909 § 2621
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