other commissioners, to be appointed and qualified as aforesaid; whereupon the same proceedings shall be had as are before directed.

The report of commissioners is regarded in the same light as a verdict, and should only be set aside for the same reason that a verdict would be. Lucas v. Peters, 45 Ind.

313.

To question the correctness of the report of the commissioners, exceptions thereto should be filed, and if overruled, exceptions taken to the ruling and such ruling assigned as error. Kern v. Maginnis, 55 Ind. 459; Clark v. Stephenson, 73 Ind. 489. Mere excepting to the report of the commissioners presents no question. Quick v. Brenner, 101 Ind. 230.

The truth of the exceptions must be shown to be available. Parks v. Kimes, 100 Ind. 148.

Exceptions to report of commissioners are triable by the court only. Dillman v. Cox, 23 Ind. 440.

On appeal the exceptions and action of the court must be shown by a bill of exceptions. Clark v. Stephenson, 73 Ind. 489; Radcliff v. Radford, 96 Ind. 482.

1213. (1199.) Land indivisible-Sale-Appraisement.-18. When such commissioner shall report to the court that the whole or part of the lands of which partition is demanded can not be divided without damage to the owners, the court, in its discretion, may order the whole or such part of the premises to be sold at public or private sale, on such terms and conditions as it may prescribe: Provided, That if the court does not order such sale to be made for cash, a cash payment of not less than one-third of the purchase-money shall be required by the court, to be made to said commissioner by the purchaser of such land, at the time of the sale: And provided, also, That at public sale such land shall sell for at least two-thirds of its appraised value, and at private sale at not less than its appraised value, to be ascertained as in cases of sales of land on execution, and, if a part only be sold, the remainder may be partitioned, subject to the rules herein before provided: And provided, further, That in all cases where lands by the court ordered to be sold at private sale do not exceed one thousand dollars in value, the same may, in the discretion of the court, be sold without any notice of sale being had or given.

(As amended, Acts 1889, p. 395. Elliott Supp., section 31. In force May 10, 1889.)

If the commissioners report the land indivisible it should be stated that no share can be set off without injury to the parties. Lake v. Jarrett, 12 Ind. 395; Lucas v. Peters, 45 Ind. 313.

If the commissioners report that the property is not divisible, and the court orders the property sold, the correctness of the action of the court can not be raised by an exception to such report. Roach v. Baker, 130 Ind. 362.

The report of the commissioners that the lands can not be divided should only be set aside on proof of the falsity thereof. Patterson v. Blake, 12 Ind. 436.

The proceeds of sale should be divided among the parties according to their respective interests. Chisam v. Way, 73 Ind. 362.

When lands are sold, the widow of a former owner is entitled to her share of the proceeds, although she may have been prevented from conveying the lands by reason of her remarriage. Small v. Roberts, 51 Ind. 281; Klinesmith v. Socwell, 100 Ind. 589. A second wife who has no children, there being children of the first marriage of the

husband, is entitled to the value of her life estate out of the proceeds of sale. Russell v. Russell, 48 Ind. 456; Swain v. Hardin, 64 Ind. 85.

Unless otherwise decreed, the purchaser of lands takes the same subject to liens. Wood v. Winnings, 58 Ind. 322.

The court may order the lands sold free of liens, and the liens transferred to the proceeds of sale. Fouty v. Morrison, 73 Ind. 333.

Liens on undivided portions of the land will follow the share of the person owing the debt. Milligan v. Poole, 35 Ind. 64.

Persons holding liens on an undivided interest in the land, may have the share of the proceeds of sale of the debtor applied on the liens. Milligan v. Poole, 35 Ind. 64; i Arnold v. Butterbaugh, 92 Ind. 403.

If the purchaser pays liens, he may be subrogated to the rights of the party in the proceeds of sale who should have paid the liens. Spray v. Rodman, 43 Ind. 225; Dunning v. Seward, 90 Ind. 63.

An appeal lies from an order decreeing the sale of the lands. Hunter v. Miller, 17 Ind. 88; Benefiel v. Aughe, 93 Ind. 401; Fleenor v. Driskill, 97 Ind. 27; Kreitline v. Franz, 106 Ind. 359.

1214. (1200.) Effect of partial partition.-19. If under such partial partition, duly confirmed, the shares assigned be full shares, the residue reserved for sale shall be discharged from all title or claim of the parties so receiving assignment of their shares.

1215. (1201.) Commissioner to sell-Bond.-20. Such sale shall be made by a commissioner to be appointed by the court, other than one of the commissioners to make partition; and such commissioner shall file a bond payable to the state of Indiana in such penalty as the court may direct, conditioned for the faithful discharge of the duties of his trust.

If all the owners of the lands are not made parties the sale may be set aside. Harlan v. Stout, 22 Ind. 488.

If the commissioner fails to pay over the proceeds of sale in proper time, or converts the money or notes to his own use, suit will lie on his bond. Nixedon v. State, ex rel., 24 Ind. 370; Owen v. State, 25 Ind. 107; Williams v. State, ex rel., 87 Ind. 527; Coggeshall . State, ex rel., 112 Ind. 561.

No demand is necessary before suit on the bond of the commissioner. Ferguson v. State, ex rel., 90 Ind. 38.

When the commissioner fails to properly pay over the purchase-money he is chargeable with interest. Ferguson v. State, ex rel., 90 Ind. 38.

Suit on such bond is not barred until twenty years after the action accrues. Owen v. State, ex rel., 25 Ind. 107.

The successor of a commissioner can not, as relator, sue on the bond of the former commissioner; the persons in interest being the proper relators. Nixedon v. State, ex rel., 24 Ind. 370.

If the position of commissioner becomes vacant, another commissioner may be appointed. Coggeshall v. State, ex rel., 112 Ind. 561.

A judgment confirming the sale can not be collaterally attacked. McLead v. Applegate, 127 Ind. 349.

1216. (1202.) Commissioner's deed.-21. Whenever it shall appear to the court that such lands are sold for cash, or in case a partial credit is given that the first or cash payment of the purchase-money is paid, the court shall order such commissioner, or some other person,

to execute a conveyance to the purchaser, which shall bar all claims. of such owners to such lands as effectually as if they themselves had executed the same; but in case partial credit is given for such lands, the court shall, at the time said conveyance is so ordered to be made, also order and direct that, concurrently with the execution of said conveyance, the purchaser shall execute to such commissioner a mortgage upon such lands to secure the deferred payments of the purchasemoney thereof, which mortgage when so executed shall be by said. commissioner placed upon record as required by law.

(As amended, Acts 1889, p. 396. Elliott Supp., section 32. In force May 10, 1889.)

For form of deed see ante, section 1035.

The purchaser of the lands is not entitled to the possession thereof until he obtains a deed. Stout v. McPheeters, 84 Ind. 585; Deputy v. Mooney, 97 Ind. 463.

The commissioner may sue for the purchase-money without tendering a deed. Swain v. Morberly, 17 Ind. 99.

On obtaining a judgment for the purchase-money the commissioner may have the land ordered sold. Rout v. King, 103 Ind. 555.

As to what is a sufficient reference in the deed to the records of the court, see Singer v. Scheible, 109 Ind. 575.

1217. (1203.) Commissioners can not purchase.-22. Commissioners to make partition or to sell shall not become purchasers of said land.

1218. (1204.) Proceeds, how distributed.-23. The moneys arising from such sale, after payment of just costs and expenses, shall be paid by such commissioner to the persons entitled thereto, according to their respective shares, under the direction of the court.

The court should order the distribution of the proceeds of sale among the parties according to their interests. Chisham v. Way, 73 Ind. 362.

The commissioners should pay the moneys to the parties entitled thereto, and not to the clerk of the court except by order of the court. Coggeshall v. State, ex rel., 112 Ind. 561.

If the money is paid to the clerk of the court the parties entitled thereto may recover the same. Hunt v. Milligan, 57 Ind. 141.

1219. (1205.) Two commissioners may act.-24. Any two of the persons named as commissioners to make partition may perform the duties required by this act; and vacancies may be filled by the court. Two of the commissioners may make a valid report, either over the objection or in the absence of the other. Griffy v. Enders, 60 Ind. 23.

1220. (1206.) Vacancy-Successor's acts valid.-25. The occurrence of a vacancy shall not invalidate the previous acts of the commissioners; and a successor shall take up and continue the proceedings, which shall be as valid as if the same had been done by the commissioners first appointed.

1221. (1207.) Pay of commissioners.-27. Such court shall make such allowance to the commissioners for their services, and for surveying, marking, chaining, platting, and the execution of the necessary conveyances as to such court shall seem reasonable.

1222. (1208.) Costs, how apportioned.-28. All costs and necessary expenses, including reasonable counsel fees for plaintiff's counsel, the amount thereof to be determined by the court, shall be awarded and enforced in favor of those entitled thereto against the partitioners, and in such proportions against each and according to equity as the court may determine, having regard to their relative interests in the lands or proceeds aparted [apportioned].

(As amended, Acts 1893, p. 315. In force May 18, 1893.)

The costs may be apportioned according to the interest of the parties. Wilcox v. Monday, 83 Ind. 335; Jenkins v. Dalton, 27 Ind. 78.

This section only relates to costs incident to the partition proceedings proper, and costs made in litigating the question of title should be taxed to the losing party. Merrill v. Shirk, 128 Ind. 503.

1223. (1209.) Proceedings, when reviewed.-29. Upon showing sufficient cause, any person not served with summons may, within one year after such partition is confirmed, appear and open the proceedings, and obtain a review thereof; and also any person of unsound mind, or any infant whose guardian did not attend and approve such partition, may, within one year after the removal of his disability, have a review of such partition.

The guardian of an infant defendant is not authorized hereunder to maintain proceedings in review. Bundy v. Hall, 60 Ind. 177.

Minors can not maintain an action of review until after arriving of age, and then only for cause shown. Brown v. Keyser, 53 Ind. 85; Bundy v. Hall, 60 Ind. 177.

[1881 S., p. 240. In force September 19, 1881.]

1224. (1210.) Notice to creditor.-736. Any person bound as surety upon any contract in writing for the payment of money or the performance of any act, when the right of action has accrued, may require, by notice in writing, the creditor or obligee forthwith to institute an action upon the contract.

See section 1232.

The notice by a surety to a creditor to sue the principal must be in writing. Halstead *. Brown, 17 Ind. 202; Chrisman v. Tuttle, 59 Ind. 155; McCoy v. Lockwood, 71 Ind. 319. A suit can not operate in any event as a notice by a surety to sue the principal. Barnes v. Mowry, 129 Ind. 568.

Notice given by a surety to a creditor to send the claim to a person named for collection is not such a notice as the statute requires. Kaufman v. Wilson, 29 Ind. 504.

The creditor can not be required to bring attachment, or other extraordinary proceedings, on notice of the surety to sue. Sims v. Parks, 32 Ind. 363.

If the principal is not a resident of the state the creditor can not be required to sue by notice from the surety. Conklin v. Conklin, 54 Ind. 289; Whittlesey v. Heberer, 48 Ind. 260; Franklin v. Franklin, 71 Ind. 573.

Notice by a surety to a creditor to sue can not be given until after the debt is due. Scales v. Cox, 106 Ind. 261.

The notice can not be served on the attorney of the creditor. Driskill v. Board, 53 Ind. 532.

Notice by one surety to a creditor to sue does not enure to the benefit of other sureties. Cochran v. Orr, 94 Ind. 433; Martin v. Orr, 96 Ind. 491.

The notice may be served, and proof thereof made, as is provided by statute for serving other legal notices. McCoy v. Lockwood, 71 Ind. 319.

After judgment against a surety he can not by notice require the creditor to sue the principal. Irwin v. Helgenberg, 21 Ind. 106.

The notice should unconditionally require suit to be brought forthwith. Fensler v. Prather, 43 Ind. 119.

This section has no relation to the rights of sureties between themselves, and a failure of the creditor to sue after notice does not affect the rights of sureties as to contribution. Reiter v. Cumback, 1 App. 41.

1225. (1211.) Surety discharged, when.-737. If the creditor or obligee shall not proceed within a reasonable time to bring his action upon such contract, and prosecute the same to judgment and execution, the surety shall be discharged from all liability thereon.

The payee is not bound to follow the principal out of the state. Suit should follow notice immediately. Conklin v. Conklin, 54 Ind. 289.

The creditor can not be required to institute any extraordinary proceedings. Sims . Parks, 32 Ind. 363.

An answer by a surety alleging notice to the creditor to sue should aver that the principal, or his estate if he be dead, is within the jurisdiction of the court. Whittlesey v. Heberer, 48 Ind. 260; Franklin v. Franklin, 71 Ind. 573.

If the principal is dead, the surety by notice may require the creditor to sue, and proceed against the estate of the principal. Daily v. Robinson, 86 Ind. 382.

The creditor should sue at the first term of court after the service of notice. Craft v. Dodd, 15 Ind. 380; Root v. Dill, 38 Ind. 169; McCoy v. Lockwood, 71 Ind. 319. See Hamrick v. Barnett, 1 App. 1.

The creditor must take out execution on his judgment within a reasonable time. Martin v. Orr, 96 Ind. 491.

The surety must comply with the statute in order to be released by delay in suing by the creditor. Mere delay of the creditor does not release the surety. Kirby v. Studebaker, 15 Ind. 45; Owen v. State, ex rel., 25 Ind. 107; Wasson v. Hodshire, 108 Ind. 26; May v. Reed, 125 Ind. 199; Jerauld v. Trippet, 62 Ind. 122; Barnes v. Mowry, Ind. 568.

129

The surety can not by suit compel the creditor to sue after notice is given by the surety, as his remedy is by a defense to an action against him. Barnes v. Sammons, 128 Ind. 596.

If a suit may be commenced during a term of court in session when notice is given it is the duty of the creditor to so commence it. Hamrick v. Barnett, 1 App. 1.

1226. (1212.) Trial of suretyship.-738. When any action is brought against two or more defendants upon a contract, any one or more of the defendants being surety for the others, the surety may,