31, and Burns' Ind. Rev. Stat., § 1201, it is held that the Superior Court of Allen county has jurisdiction to partition real estate in that county. Romy v. Brannan, 32 Ind. App. 146 (67 N. E. Rep. 998). Under Ia. Code, § 4250 a judgment lien holder is a necessary party and where he is not made a party he may insist on his lien. Smith v. Piper, 118 Ia. 363 (92 N. W. Rep. 56). Ky. Civ. Code, § 499 construed and applied-partition against infants. Blue v. Waters, Ky. (71 S. W. Rep. 889; 24 Ky. Law Rep. 1481). Under Me. Rev. Stat., ch. 88, § 4, a petition for partition can not be heard when notice has not been ordered or given to cotenants, who are not named, but who are described as "unknown." Savage v. Gray, 96 Me. 557 (53 Atl. Rep. 61). 3 Mich. Comp. Laws 1897, §§ 11014, 11045, 11063, 11068 construed and applied-partition of lands in different counties-sale under suit brought in one county. Morris v. Donovan, 130 Mich. 336 (89 N. W. Rep. 963). The rules of pleading, practice, and evidence applicable to civil actions generally apply to an action for partition under Minn. Gen. Stat. 1894, ch. 74. McArthur v. Clark, 86 Minn. 165 (90 N. W. Rep. 369; 91 Am. St. Rep. 333). Miss. Code, §§ 3118, 3421 construed and applied-service by publication on nonresident defendant-right of absent defendant to open decree. Moore v. Summerville, 80 Miss. 323 (31 So. Rep. 793; 32 So. Rep. 294). A beneficiary or trustee in a mortgage executed by a party to a partition suit is not a necessary party to such suit, and persons claiming under such an instrument are bound by the judgment subsequently rendered in the action. Mo. Rev. Stat. 1889, § 7160 applied. Becker v. Stroeher, 167 Mo. 306 (66 S. W. Rep. 1083). Tex. Rev. Stat., arts. 3607, subd. 3; 3611, construed and applied-requisites of description in complaint and decree. Black v. Black, 95 Tex. 627 (69 S. W. Rep. 65). Under Va. Code, ch. 114 courts of equity have jurisdiction of suits for partition, and they are clothed with authority, where there are liens by judgment or otherwise, on the interest of any party, to apply the dividends of such party in the proceeds of sale to the discharge of such liens. Grove v. Grove, 100 Va. 556 (42 S. E. Rep. 312). Wis. Rev. Stat. 1898, $$ 3545, 3552 construed and applied-partition by arbitration. Frankfurth v. Steinmeyer, 113 Wis. 195 (89 N. W. Rep. 148).

Sec. 543.

Partition proceedings-Trial of title in. Upon issues properly joined, the adverse claims of title by

defendants who are not cotenants may be adjudicated. Satterlee v. Kobbe, 173 N. Y. 91 (65 N. E. Rep. 952). Issues may be formed in partition proceedings to establish and quiet titles among the parties, but in the absence of such issues there can be no adjudication beyond a division of the property. Sauer v. Schenck, 159 Ind. 373 (64 N. E. Rep. 84). Where all the parties claim under a common ancestor and the only disputed question is the extent of their several interests, which depends upon the proper construction to be given a will, this question can be determined in partition proceedings. O'Hearn v. O'Hearn, 114 Wis. 428 (90 N. W. Rep. 450; 58 L. R. A. 105).

Sec. 544. Partition proceedings-Effect of judgment. A decree partitioning lands obtained by the owners of life estates therein which adjudges them to be the owners thereof in fee does not bar the remaindermen not made parties thereto from asserting their ownership in fee against purchasers of the fee from the partitioners. Peterson v. Jackson, 196 Ill. 40 (63 N. E. Rep. 643). Applying Mo. Rev. Stat. 1899, § 4386, providing that in proceedings for partition, the court shall "declare the rights, titles, and interests of the parties to such proceedings, petitioners as well as defendants," it is held that a partition decree which finds that a defendant has no interest in the premises is conclusive against him in favor of the plaintiff, in a subsequent action brought by such plaintiff against such defendant. Bartley v. Bartley, 172 Mo. 208

(72 S. W. Rep. 521).

Sec. 545. Partition proceedings-Allowance of costs and attorney's fees. Costs can be awarded against a defendant, under Cal Code Civ. Proc., § 796, only after final. judgment. Harrington v. Goldsmith, 136 Cal. 168 (68 Pac. Rep. 594). No costs should be adjudged against defendants brought in by allegations in plaintiff's complaint, where the final decree shows that they were entitled to all the property involved. Chivers v. Race, 196 Ill. 71 (63 N. E. Rep. 701). An allowance of attorney's fees can only be made when authorized by statute; and Ala. Code, § 3183, does not authorize such an allowance. Jordan v. Farrow, 130 Ala. 428 (30 So. Rep. 338). Burns' Ind. Rev. Stat., § 1222, authorizing an allowance of attorney's fees in suits for partition, does not apply where all the defendants appeared in the action and

contested the matters stated in the complaint, and for that reason derive no benefit from plaintiff's attorneys. St. Clair v. Marquell, 161 Ind. 56 (67 N. E. Rep. 693). The plaintiff's right to an apportionment of solicitor's fees, their value having been proved, among persons to whom property has been decreed, should not be refused on the ground that the original bill failed to state the title where it correctly set forth the record title at the time the bill was filed, but afterwards certain deeds and mortgages were placed of record by a mortgagee, who filed an answer showing his interest, and the bill was amended without injury to the heirs. Mehan v. Mehan, 203 Ill. 180 (67 N. E. Rep. 770).

Sec. 546. Payment of owelty-Effect of statute providing for partition sale. l'arties to a partition who request the commissioners to set off a part of the premises to another upon his payment of owelty, as authorized by Mass. Pub. Stat., ch. 178, § 56 (Rev. Laws, ch. 184, § 41), and agree to the partition as thus made, waive their right to object to the failure of the commissioners to make a formal finding that the premises could not be partitioned in the ordinary manner without great inconvenience, as required by the terms of the statute. Nichols v. Nichols, 181 Mass. 490 (63 N. E. Rep. 1072).

A statute (R. I. Gen. Laws, ch. 265), providing for sale of land in order to effect partition, does not abrogate or limit the equitable power of courts to decree the payment of owelty. Updike v. Adams, 24 R. I. 220 (52 Atl. Rep. 991). This case is followed in Robinson v. Robinson, 24 R. I. 222 (52 Atl. Rep. 992). In the first case the court say: "The authorities seem to be almost unanimous that the general powers of courts of equity are broad enough to require a payment of this kind. Story, Eq. Jur. §§ 654, 657; Pom. Eq. Jur.§ 1389; 2 Daniell, Ch. Pl. & Prac. $1131; Bisp. Eq. (5th Ed.) § 492; Tied. Eq. Jur. § 523 Adams' Eq. p. 449; Freem. Co-ten. & Part. § 507; Beach, Mod. Eq. Jur. § 993; Clarendon v. Hornby, I P. Wms. 446; Horncastle v. Charlesworth, II Sim. 315: Calhoun v. Rail, 26 Miss. 414; Martin v. Martin, 95 Va. 26 (27 S. E. Rep. 810); Oliver v. Jernigan, 46 Ala. 41; Hall v. Piddock, 21 N. J. Eq. 311; Cooter v. Dearborn, 115 Ill. 509 (4 N. E. Rep. 388). The respondent does not deny the doctrine of these authorities, but claims that our statute (Gen. Laws, ch. 265), which provides for a sale of an estate, is in

tended to apply to those cases where the division can not be exact, and that it thus operates as a limitation upon the general rule in equity by providing a substitute for it. We do not think this is so. While there is no reported decision in this state of a decree for the payment of owelty against objection, it has so often been required in decrees, without objection, that it seems to have been a generally accepted rule both by the court and bar. It is obviously impossible, in many cases, to divide an estate into parts of exactly equal value. Differences in buildings, location, water, wood, fertility, and other incidents affecting value, frequently need to be adjusted by a payment of money. It would be a greater stretch of power to require a large estate to be sold as a whole, where a proportionately small sum is required to meet such an adjustment, than to require the payment of such a sum. We can not think that the statute was intended to abrogate the power in such cases, and therefore that it is not in substitution for the general power, but in addition to it, to cover cases in which a payment of owelty is impracticable; for example, the division of a single house and lot between several parties."

Sec. 547. Partition sales. Lands occupied as a homestead by the widow and children of a decedent can not be sold for the purposes of partition subject to their homestead right. Walker v. Walker, 195 Ill. 409 (63 N. E. Rep. 271). Land is presumed to be divisible and to authorize a sale for division; it must be shown that it is indivisible without impairing its value. Ky. Civ. Code, § 490, subd. 2 construed and applied. Talbott v. Campbell, (Ky.) 67 S. W. Rep. 53 (23 Ky. Law Rep. 2198). It is the duty of the court, before decreeing a sale in a partition suit, to judicially determine the rights and interests of the cotenants in the land, and failure to do so is ordinarily reversible error. Childers v. Loudin, 51 W. Va. 559 (42 S. E. Rep. 637). A court of equity, having obtained jurisdiction of an action between the heirs of an intestate seeking to charge the interest of one of them in lands held by them in common with advancements made to him, it is no departure to order a sale of the lands for partition, and to divide the proceeds equitably among those entitled to them. In such a case the lien for the advancement is superior to the rights of the creditors of the heir against whom the advancement is charged. Comer v. Shehee, 129 Ala. 588 (30 So. Rep. 95; 87 Am. St. Rep. 78). Under Ala. Code, §§ 3161, 3187,

tenants in common of property which can not be equitably divided, whether their title be legal or equitable, may file a bill in equity for a sale of the property for the purposes of division. Huntington v. Spear, 131 Ala. 414 (30 So. Rep. 787). The power of the court to confirm or refuse to confirm a partition sale, given by Cal. Code Civ. Proc., § 766, is not an arbitrary power, but a sound judicial discretion which must be exercised with just regard to the rights of all concerned. See opinion for discussion of when confirmation will be withheld on account of inadequacy of price. Dunn v. Dunn, 137 Cal. 51 (69 Pac. Rep. 847). Construing and applying Mass. Pub. Stat., ch. 178, § 65, authorizing the sale "of the whole or any part of the lands that can not be advantageously divided," it is proper to take into account that the usefulness of certain parts of the land is dependent upon the right of flowage of water from other parts which right may not continue after the division. Heald v. Kennard, 180 Mass. 521 (63 N. E. Rep. 4).

A decree of sale rendered in a partition suit, to which all persons having any interest in the property were made parties, can not be avoided on the ground that a power of sale contained in the will of the common ancestor of the parties took away the right to maintain partition, that question being necessarily involved in the adjudication made by the court. Parish v. Parish, 175 N. Y. 181 (67 N. E. Rep. 298). When real estate is sold in such suit without a judicial ascertainment of the interests of the parties, and is purchased by a cotenant who never appeared in the cause, nor in any way aided in bringing the property to sale, and the sale is confirmed without objection, his title is protected by W. Va. Code, ch. 132, § 8, notwithstanding the decree was erroneous for failure of the court previously to determine the interests of the parties, and the cotenant parties must resort to the fund arising from the sale. Childers v. Loudin, 51 W. Va. 559 (42 S. E. Rep. 637). In Kentucky it is held that the reversal of a judgment of sale will not affect a sale made under the judgment before reversal. Talbott v. Campbell, (Ky.) 67 S. W. Rep. 53 (23 Ky. Law Rep. 2198).