Chapter 528 Partition Suits

528.130 - Partition not to be made contrary to will.

Steven Groce, Attorney Advertisement

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

528.030 - Partition, suit for, by whom brought, how determined.

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.

528.230 - Commissioners to make affidavit and give notice to parties.

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

528.330 - When land laid out, map shall be returned, filed and recorded.

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

528.630 - Sale, how conducted.

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

528.430 - Sheriff and sureties responsible on his bond, when.

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

528.530 - Courts to allow attorney's fee and compensation for guardian ad litem.

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

528.020 - Parties to suit.

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

528.320 - Copy of report and judgment to be recorded.

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

528.220 - Compensation of commissioners.

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

528.620 - Partition of personal property — proceedings in.

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

528.520 - Payment of money adjudged, when.

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

528.420 - Sale to be a bar against dower, when.

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

528.300 - Report may be set aside and new commissioners appointed, when.

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

528.200 - Court shall appoint commissioners, when.

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

528.100 - Conservators may act for disabled persons.

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

528.500 - Answer shall contain what — issue shall be tried, how.

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

528.400 - Sheriff to collect purchase money, make deed to purchaser — proceedings if sheriff or purchaser dies.

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

528.600 - Note to be taken for deferred sums — form of — shall express what — bidder with interest in property.

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 7-07-97

528.210 - Court, or judge, may appoint new commissioners, when.

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

528.310 - If report approved, judgment to be rendered thereon — force of judgment.

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

528.010 - Equity suit — who may bring.

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 7-07-97

528.410 - Defective sheriff's deed to be corrected, when and how.

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

528.510 - Judgment by default rendered, when.

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

528.610 - Compensation of sheriff.

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

528.540 - Majority of commissioners may act.

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

528.440 - Outgoing sheriff to complete sale — exception.

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

528.640 - Suits to be tried, when.

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

528.340 - Court may order sale of lands, when.

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

528.240 - Commissioners shall proceed, how.

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

528.040 - Suit, where brought.

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.

528.140 - Partitioned lands subject to debts of estate.

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

528.450 - Sheriff to report to court — report shall contain what.

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

528.550 - Order of sale may be had without the appointment of commissioners, when — special commissioner, duty and power of.

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

528.250 - Land not susceptible of division, commissioners shall report, what.

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

528.350 - Proceedings where part of shares has been set off.

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

528.150 - Judgment by default shall be rendered, when — proof of title to be exhibited.

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

528.050 - Petition shall set forth what facts.

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

528.470 - Adverse claim to share, how disposed of.

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

528.570 - Special commissioner to execute and file bond with clerk.

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

528.170 - Several shares may be set off together.

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

528.070 - When name or interest of a party is unknown, what necessary.

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

528.270 - May divide lands into lots, when.

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

528.370 - Order of sale shall specify what — shall be certified to sheriff — duty of sheriff — sale, how conducted.

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

528.560 - Court to order sale of lots, when.

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

528.460 - Proceeds of sale, how divided.

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

528.060 - Who shall be made parties.

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

528.160 - Rights of parties to be determined, how — judgment to be rendered.

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.

528.360 - Effect of confirmation of report on parties claiming adversely.

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

528.260 - Lands shall be divided, how.

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

528.380 - Order of sale shall be renewed, when.

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

528.280 - Commissioners shall make report — contents.

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

528.080 - Those having an interest may appear and be made parties.

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

528.180 - Parcels, set off to the parties, to be held and enjoyed by them, how.

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

528.580 - Special commissioner to perform same duties as sheriff.

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

528.480 - Party claiming proceeds of sale may proceed, how.

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

528.290 - Report to be proved or acknowledged — filed.

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

528.390 - Lands may be sold in parcels, when.

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

528.190 - When parties claim adversely, court shall proceed, how.

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

528.090 - Proceedings, how governed.

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

528.490 - Summons may be directed to whom — how served.

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

528.590 - Sales, when and where made.

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.