To pay the costs of the reference. Third-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. Fourth-The residue among the owners of the property sold, according to their respective shares therein. securities SEC. 286. Whenever any party to an action who holds a lien upon When other the property, or any part thereof, has other securities for the payment for payment of the amount of such lien, the Court may, in its discretion, order such of fieň. securities to be exhausted before a distribution of the proceeds of sale, or may order a just deduction to be made from the amount of the lien on the property on account thereof. how to be SEC. 287. The proceeds of sale, and the securities taken by the Proceeds, referees, or any part thereof, shall be distributed by them to the per- distributed. sons entitled thereto, whenever the Court so directs. But in case no direction be given, all such proceeds and securities shall be paid into Court, or deposited therein, or as directed by the Court. tion of con SEC. 288. When the proceeds of sales of any shares or parcels be- Determinalonging to persons who are parties to the action, and who are known, fiting are paid into Court, the action may be continued as between such par- claims. ties, for the determination of their respective claims thereto, which shall be ascertained and adjudged by the Court. Further testimony 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. made. SEC. 289. All sales of real property, made by referees under this Sales, how chapter, shall be made by public auction to the highest bidder, upon notice published in the manner required for the sale of real property on execution. The notice shall state 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 shall be stated in the notice. SEC. 290. The Court shall, in the order for sale, direct the terms of Same. 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, infants, or parties out of the State. SEC. 291. The referees may take separate mortgages and other se- Same. curities for the whole or convenient portions of the purchase money, of 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, and for the shares of an infant, in the name of the guardian of such infant, and for other shares, in the name of the Clerk of the county and his successors in office. SEC. 292. The person entitled to a tenancy for life or years, whose estate shall have been sold, shall be entitled to receive such sum as may be deemed a reasonable satisfaction for such estate, and which the person so entitled may consent to accept instead thereof, by an instrument in writing, filed with the Clerk of the Court. Upon the filing of such consent, the Clerk shall enter the same in the minutes of the Court. How ten ants for life, etc. may receive satis faction for estates sold. SEC. 293. If such consent be not given, filed and entered, as pro- Same. vided in the last section, at or before a judgment of sale is rendered, the Court shall ascertain and determine what proportion of the proceeds of the sale, after deducting expenses, will be a just and reasonable sum to be allowed on account of such estate, and shall order the same to be Same. or estate, paid to such party, or deposited in Court for him, as the case may require. SEC. 294. If the person entitled to such estate for life or years be unknown, the Court shall provide for the protection of their rights in the same manner, as far as may be, as if they were known and had appeared. Contingent SEC. 295. In all cases of sales, when it appears that any person future right has a vested or contingent future right or estate in any of the property how settled. sold, the Court shall ascertain and settle the proportional value of such contingent or vested right or estate, and shall direct such proportion of the sale to be invested, secured or paid over, in such manner as to protect the rights and interests of the parties. Terms and mode of sale. Certain par be inter SEC. 296. In all cases of sales of property, the terms shall be made known at the time; and if the premises consist of distinct farms or lots, they shall be sold separately. SEC. 297. Neither of the referees, nor any person for the benefit of ties not to either of them, shall be interested in any purchase; nor shall a guardian of an infant party interested in the purchase of any real property, being the subject of the action, except for the benefit of the infant. All sales contrary to the provisions of this Section shall be void. ested in sale. Report of sale. Order to execute conveyance. SEC. 298. After completing a sale of the property, or any part thereof ordered to be sold, the referee shall 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 shall be filed in the office of the Clerk of the county where the property is situated. SEC. 299. If the sale be confirmed by the Court, an order shall be entered directing the referees to execute conveyances and take securities pursuant to such sale; which they are hereby authorized to do. Such order may also give directions to them respecting the disposition of the proceeds of the sale. Where parSEC. 300. When a party entitled to a share of the property, or an ty entitled incumbrancer entitled to have his lien paid out of the sale, becomes a to share purchases. purchaser, the referees may take his receipt for so much of the proceeds of the sale as belongs to him. Convey. ance, where recorded and effect. Proceeds SEC. 301. The conveyances shall 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 shall have been named as parties in the action, and against all such parties and persons as were unknown if the summons have been served by publication, and against all persons claiming from them, or either of them. SEC. 302. When there are proceeds of a sale belonging to an un. belonging known owner, or to a person without the State, who has no legal representative within it, the same shall be invested in securities or interest for the benefit of the persons entitled thereto. to unknown owners. Same. Security by SEC. 303. When the security of the proceeds of the sale is taken, or when an investment of any such proceeds is made, it shall be done, except as herein otherwise provided, in the name of the Clerk of the county where the papers are filed, and his successors in office, who shall hold the same for the use and benefit of the parties interested; subject to the order of the Court. SEC. 304. When security is taken by the referees on a sale, and referees on the parties interested in such security, by an instrument in writing under their hands delivered to the referees, agree upon the shares and sale. proportions to which they are respectively entitled; or when shares and proportions have been previously adjudged by the Court, such securities shall be taken in the names of, and payable to, the parties respectively entitled thereto; and shall be delivered to such parties upon their receipt therefor. Such agreement and receipt shall be returned and filed with the Clerk. SEC. 305. The Clerk in whose name a security is taken, or by Same. whom an investment is made, and his successors in office, shall receive the interest and principal as it becomes due, and apply and invest the same as the Court may direct, and shall file in his office all securities taken, and keep an account in a book provided and kept for that purpose in the Clerk's office, free for inspection by all persons, of investments and moneys received by him thereon, and the disposition thereof. SEC. 306. When it appears that partition cannot be made equal Compensation, when. between the parties according to their respective rights, without prejudice to the rights and interest of some of them, and a partition be ordered by judgment, the Court may adjudge compensation to be made by one party to another, on account of the inequality of partition. But such compensation shall not be required to be made to others by owners unknown, nor by infants, unless in case of an infant it appear that he has personal property sufficient for that purpose, and that his interest will be promoted thereby. SEC. 307. When the share of an infant is sold the proceeds of the Proceeds of sale may be paid by the referee making the sale, to his general guard- sale,infant's share paid ian or the special guardian appointed for him in the action, upon giv- to guardian. ing the security required by law or directed by order of the Court. SEC. 308. The guardian who may be entitled to the custody and Insane permanagement of the estate of an insane person, or other person ad- son. judged incapable of conducting his own affairs, whose interest in real property shall have been sold, may receive, in behalf of such person, his share of the proceeds of such real property, from the referee, on executing, with sufficient sureties, an undertaking approved by a Judge of the Court, that he will faithfully discharge the trust reposed in him, and will render a true and just account to the person entitled, or to his legal representative. sented to by guardian. SEC. 309. The general guardian of an infant, and the guardian Petition entitled to the custody and management of the estate of an insane per- may be conson, or other person adjudged incapable of conducting his own affairs, who is interested in real estate held in joint tenancy, or in common, or in any other manner so as to authorize his being made a party to an action for the partition thereof, may consent to a partition without action, and agree upon the share to be set off to such infant or other person entitled, and may execute a release in his behalf to the owners of the shares of the parts to which they may be respectively entitled, upon an order of the Court. SEC. 310. The costs of partition, including fees of referees and Cos's of other disbursements, shall be paid by the parties respectively entitled partition. 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, a litigation arises between some of the parties only, the Court may require the expense of such litigation to be paid by the parties thereto, or any of them. SEC. 311. The Court, with the consent of the parties, may appoint eree may be Single ref a single referee, instead of three referees, in the proceedings under the appointed. provisions of this chapter, and the single referee, when thus appointed, shall have all the powers and perform all the duties required of the three referees. Mining claim, par tition of. Order of Referees to go on claim. Parties may unite. Parties to select place SEC. 312. When the action is for partition of a mining claim among the tenants in common, joint tenants, coparceners or partners thereof, the Court, upon good cause shown by any party or parties in interest, may, instead of ordering partition to be made in manner as herein before provided, or a sale of the premises for cash, direct the referees to divide the claim in the manner hereinafter specified. SEC. 313. The Court shall in its order, or by a subsequent order made upon motion, fix the time for division of the claim by the referees, which shall not be less than twenty nor more than forty days from the day of making the order, except by consent of all the parties in interest who have appeared in the action. SEC. 314. 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 whole business is completed. SEC. 315. 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 business of 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 under seal, and acknowledged as in cases of conveyances of real estate, the guardian of an infant and the guardian entitled to the custody and 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. SEC. 316. At the time and place of division one of the referees of location. to be selected by them shall in the manner of public auction offer to the party or parties who will take the least part or portion of said 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 said mining claim, at the place designated by them or him, according to the terms of his or their bid. Same. Parties remaining. SEC. 317. When the referees have marked off and set apart the interest of the lowest bidder, as provided in the last section, they shall offer to the remaining parties the privilege of selection as in said section mentioned and described, 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, as provided in Section three hundred and fifteen. SEC. 318. The party or parties remaining as provided in the last section, 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. be returned. SEC. 319. The referees shall return, with their report in this Act Evidence to required to be made by them, the evidences of authority presented to them by persons other than the parties mentioned in the order of the Court by which they claim the right to bid, or otherwise act, during the proceedings hereinbefore mentioned. CHAPTER 5-ACTIONS FOR THE USURPATION OF AN OFFICE SEC. 320. An action may be brought by the Attorney-General in the name of the people of this State upon his own information, or on the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this State. And it shall be the duty of the Attorney-General to bring the action whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed so to do by the Governor. Actions for of office, etc. usurpation state. SEC. 321. Whenever such action is brought, the Attorney-General, Complaint, in addition to the statement of the cause of action, may also set forth what to in the complaint the name of the person rightly entitled to the office, with a statement of his right thereto; and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order may be granted by a Judge of the Supreme Court, or a District Judge, for the arrest of such defendant, and holding him to bail; and thereupon he may be arrested and held to bail, in the same manner and with the Defendant same effect, and subject to the same rights and liabilities as in other may be civil actions where the defendant is subject to arrest. arrested. how SEC. 322. In every such case judgment may be rendered upon Judgment, the right of the defendant and also upon the right of the party so rendered. alleged to be entitled; or only upon the right of the defendant, as justice shall require. take office. person may SEC. 323. If the judgment be rendered upon the right of the per- When son so alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the execution of the office. recoverable. SEC. 324. If judgment be rendered upon the right of the person Damages so alleged to be entitled, in favor of such person, he may recover by action the damages which he shall have sustained by reason of the usurpation of the office by the defendant. several may fendant has SEC. 325. When several persons claim to be entitled to the same Rights of office or franchise, one action may be brought against all such persons, be tried in in order to try their respective rights to such office or franchise. one action. SEC. 326. When a defendant, against whom such action has been Judgment, brought, is adjudged guilty of usurping, or intruding into, or unlaw- when defully holding any office, franchise or privilege, judgment shall be ren- intruded dered that such defendant be excluded from the office, franchise or privilege, and that he pay the costs of the action. The Court may, also, in its discretion, impose upon the defendant a fine not exceed ing five thousand dollars, which fine, when collected, shall be paid into the Treasury of the State. into office. |
