§ 721 Petition for partition; persons entitled to apply.
(a) When any 2 or more persons hold lands and tenements within this State as joint tenants or tenants in common, or as parceners under the intestate laws of this State, or when any persons hold an interest either in possession or in remainder in lands and tenements within this State, as members of a class, which class may be enlarged by the happening of a future contingency, any 1 or more of them, being of lawful age, or the guardian of any being under age, may present a petition to the Court of Chancery of the county wherein the lands and tenements are situate, or, if such real estate is situate in several counties, then to the Court of Chancery of either county wherein any of the real estate is situate. The petition shall state the facts, describe the lands and tenements so held, and pray partition thereof among the several parties entitled to such lands and tenements according to their several and respective interests.
(b) Thereupon, the Court of Chancery, or any Judge thereof in vacation, shall order a summons in partition to be issued, directed to the persons interested, who may not have joined in such petitions, returnable on some day, which shall not be less than 20 days after the date of such order requiring such persons to appear before the Court of Chancery, and show cause why partition of the premises should not be made, according to the prayer of the petition.
(c) Partition may be had notwithstanding the share held by any parcener, joint tenant or tenant in common may be for a less estate than a fee, or may be limited over after an estate for life, or any estate therein. A partition shall bind all tenants of their share in remainder, reversion or expectancy who are entitled only to that part of the lands partitioned which may be set off in severalty to the share upon which such remainder or expectancy is limited. If no partition is made, but a sale of the lands is had and confirmed, the rights of all parties in interest, whether in possession, remainder, reversion or expectancy, shall cease and terminate as to the land and be transferred to the proceeds of the sale thereof.
(d) Where a remainder, reversion or expectancy is limited over to any person in being, such person shall be served with like summons and in the same manner as is provided by law with respect to service of summons in partition causes.
§ 722 Service of summons.
(a) If a party, named in the summons for partition cannot be found in the county, to be served personally, service may be made by leaving a copy of the summons at the usual place of abode of such party within the county at least 6 days before the return day thereof in the presence of an adult person, or, if such party has no known place of abode within the county and cannot be served personally, and his appearance is not duly entered at the return of the summons, the Court shall make such further order for service of the summons as seems proper to it.
(b) In case it appears to the Court by the petition and affidavit or other proof at the hearing of the petition, that any persons interested in the proceedings other than the petitioners are nonresidents of the State and cannot be served personally with a summons in partition, an order may be made for the appearance of the nonresidents at a day to be fixed by the Court in order. The day fixed shall not be less than 2 weeks after the date of the order. The order shall likewise prescribe the manner of serving notice thereof on the nonresidents.
Code 1852, § 1728; Code 1915, § 3273; 33 Del. Laws, c. 213; Code 1935, § 3737; 25 Del. C. 1953, § 722.;
§ 723 Unknown or uncertain parties in interest; description in petition; service by publication.
If in any cause in partition it is unknown whether any person shown by the facts set forth in the petition to be interested in the lands and premises, or any of them, of which partition is desired is living or dead, or in any case where the person is dead and it is unknown whether that person left any heirs or any of the heirs are unknown, then the petition may describe such unknown heirs as the heirs of the person who, if living, would be a proper party, and the petition, in cases under this section, shall pray that notice of the substance and object thereof may be given by publication as provided by § 722 of this title and the rules of the Court of Chancery for publication in cases of nonresidents. Upon such a petition the Court shall order notice to be given to the heirs of such deceased person by publication.
Code 1915, § 3298; Code 1935, § 3762; 25 Del. C. 1953, § 723; 70 Del. Laws, c. 186, § 1.;
§ 724 Decree of partition; appointment and duties of commissioners.
Upon the return of the summons, if the parties summoned do not appear, or appearing fail to show sufficient cause against making partition of the premises, the Court of Chancery shall enter upon the record of the Court a decree that the partition be made among the parties interested, stating the shares to be allotted to them, respectively. The Court may then direct that a commission be issued, directed to 3 freeholders of the county to be appointed in the decree as commissioners, authorizing and directing them, after being duly sworn or affirmed, according to the best of their skill and judgment, to go upon the premises and make a just and fair partition thereof amongst the parties in the proportions mentioned in the commission. The commission shall further direct the commissioners that, if in their opinion a partition of the premises will be detrimental to the interests of the parties entitled, the commissioners shall make no partition, but shall appraise the whole of the premises at the true value in money; and that they shall duly return their proceedings, under their hands and seals, according to the command of the commission, with a survey of the premises, when lands are divided, to be made by some skilful surveyor to be appointed by them, and to be sworn or affirmed. The Court may vary the terms of the commission and the oath or affirmation to be taken by the commissioners if necessary to carry into effect the purpose of such commission under this chapter. The acts of a majority of the commissioners shall be valid as if done by the whole.
Code 1852, § 1729; Code 1915, § 3274; Code 1935, § 3738; 25 Del. C. 1953, § 724.;
§ 725 Appointment of a new commission.
If from any cause a commission is returned without partition, subdivision or appraisement of the premises, or 1 or more of the freeholders dies, becomes or is declared incompetent to serve as a commissioner, before the return, or for any cause it is deemed equitable by the Court of Chancery that a new commission should be appointed, the Court may in its discretion appoint a new commission.
Code 1852, § 1692; Code 1915, § 3275; Code 1935, § 3739; 25 Del. C. 1953, § 725.;
§ 726 Final decree of partition.
If, upon the return of the commissioners, it appears that partition of the premises has been made, as directed, and the partition is approved by the Court of Chancery, a final decree shall be entered that the partition shall remain firm and stable forever, and the proceedings and decree shall be conclusive upon the parties and all claiming under them.
Code 1852, § 1732; Code 1915, § 3276; Code 1935, § 3740; 25 Del. C. 1953, § 726.;
§ 727 Proportionment of shares among issue claiming by stocks.
Whenever the issue of any child or other kindred of an intestate claim according to stocks by right of representation, the representatives, however numerous, of 1 stock, shall have, among them, 1 share proportioned to their aggregate interest, which share, if allotted to several, shall be subdivided among the parties to whom it is allotted; and further subdivision, if necessary, shall be made, until the share of each owner is apportioned to each such owner in severalty; and the partition shall be the same, whether the deceased child or other kindred whose issue are parties died before or after the decease of the intestate.
Code 1852, § 1680; Code 1915, § 3277; Code 1935, § 3741; 25 Del. C. 1953, § 727; 70 Del. Laws, c. 186, § 1.;
§ 728 Procedure upon petition by all interested parties.
Upon the petition of all the persons of lawful age entitled to or holding lands and tenements as joint tenants, tenants in common or parceners, together with the guardians of such as are not of lawful age, the Court of Chancery shall, without the issuance of a summons, enter a decree for partition, and may order the issuance of a commission for making the partition. The commission shall be proceeded in, executed and returned, and final decree entered thereon in the same manner and with the same effect as provided in this subchapter.
Code 1852, § 1733; 28 Del. Laws, c. 225; Code 1915, § 3278; Code 1935, § 3742; 25 Del. C. 1953, § 728.;
§ 729 Appointment of trustee for public sale of premises; conveyance by trustee.
If from the return of the commissioners it appears that no partition of the premises has been made, and the return is approved by the Court, or if it is shown otherwise to the Court that partition of the premises will be detrimental to the interests of the parties entitled, the Court shall make an order for the sale of the premises by a trustee appointed for that purpose, at public vendue, to the highest bidder, upon notice of the time and place of the sale as prescribed in the order. After the sale is approved by the Court, and the purchase money is first paid into Court, or secured in such manner as the Court directs, the Court shall order a deed to be executed by the trustee conveying the premises to the purchaser.
Code 1852, § 1734; Code 1915, § 3279; Code 1935, § 3743; 25 Del. C. 1953, § 729.;
§ 730 Allotment of primary interests.
If it appears to the commissioners that partition of the lands mentioned in the petition for partition can be made among the primary interests and that a partition of the lands among all persons entitled would be detrimental to such persons, the commissioners shall make a return, with an allotment, accordingly, and shall also appraise the value of all of the lands in money. At any time after such a return of the commissioners and before final decree, any joint tenants, tenants in common or parceners representing an entire primary interest so allotted may apply to the Court to have the share or part of the lands, found by the return to belong to the primary interest, allotted to the persons entitled to the primary interest in kind, to hold to them in severalty or as tenants in common or as joint tenants or parceners as the case may be. In such case the Court may make an allotment of the primary interest concerned in the application, order a sale of the residue of the lands, and make distribution of the proceeds thereof, in accordance with this chapter.
Code 1852, § 1686; Code 1915, § 3280; Code 1935, § 3744; 25 Del. C. 1953, § 730.;
§ 731 Deed upon death of purchaser.
If the purchaser of any lands and premises sold under the provisions of this chapter dies before the return and confirmation of the sale and deed made accordingly, the Court of Chancery, under its general equity powers in this behalf, may, upon the payment or securing of the purchase money, in accordance with the provisions of this chapter, direct the deed to be made to the persons entitled in such case to the lands and premises so sold.
Code 1915, § 3281; Code 1935, § 3745; 25 Del. C. 1953, § 731.;
§ 732 Title upon sale; transfer of liens to proceeds.
A purchase of the premises pursuant to the foregoing provisions of this subchapter shall pass to the purchaser of the premises all the estate and interest of the joint tenants, tenants in common or parceners or persons whether in esse or not in esse having an interest in remainder, reversion or expectancy, whether the interest is vested or contingent, free and discharged from all liens and encumbrances except liens and encumbrances as may be paramount to the title of the joint tenants, tenants in common or parceners or person of a class having an interest either in possession or in remainder, which class may be enlarged by the happenings of a future contingency. All liens and encumbrances on the estate or interest of any joint tenants, tenant in common or parcener or person of such class shall be without change or priority transferred to the interest or share of the joint tenant, tenant in common or parcener or person of such class in the proceeds of sale.
§ 733 Investment or division of sale proceeds.
The proceeds of the sale, after deducting the costs of the proceedings, shall be invested by the Court in whole or in part for the benefit of the various parties and interests as their rights appear, or divided among the parties entitled according to their several interests and the rules of law and equity.
Code 1852, § 1794; Code 1915, § 3283; 35 Del. Laws, c. 197, § 3; Code 1935, § 3747; 25 Del. C. 1953, § 733.;
§ 734 Sales upon credit; purchase money security; preference of mortgage.
The Court may, in its discretion, direct that sales made under this subchapter, be made upon credit, either as to the whole or a part of the purchase money, the payment of the purchase money to be at such time and to be secured in such manner as the Court in the order of sale prescribes, or in the order of confirmation directs. The Court may order and direct all such acts and proceedings touching the execution of a deed to the purchaser and the securing, collection and distribution of the purchase money, as it deems necessary. If the purchase money, or a part thereof, is secured by the mortgage of the purchaser and the mortgage is recorded within 30 days after the date of the mortgage, the mortgage shall have preference to any judgment against the purchaser or any other lien created or suffered by that purchaser, although such judgment or other lien be of a date prior to the mortgage.
Code 1915, § 3284; Code 1935, § 3748; 25 Del. C. 1953, § 734; 70 Del. Laws, c. 186, § 1.;
§ 735 Costs.
The costs of a proceeding for partition shall be taxed and allowed by the Court and paid from the proceeds of sale or by the parties according to their respective interests in the premises, in the manner as the Court orders.
Code 1852, § 1738; Code 1915, § 3285; Code 1935, § 3749; 25 Del. C. 1953, § 735.;
§ 736 Dower, curtesy or other estate in undivided shares of parties to partition proceedings.
A sale of any lands, tenements and hereditaments, pursuant to the provisions of § 729 of this title, shall pass to the purchaser thereof a title, free and discharged from all claims by virtue of any estate or interest in dower or by the curtesy, or other estate, in any undivided share of any of the parties entitled if the person entitled to the interest at the filing of the petition for partition was a party to the proceeding. The Court may make all orders touching the investment and disposal of the proceeds of sale of any share of the premises sold which may be necessary to secure to a person having a right of dower or curtesy, or other estate, in such share, an equivalent interest in the proceeds of sale.
Code 1852, § 1699; Code 1915, § 3286; Code 1935, § 3750; 25 Del. C. 1953, § 736.;
§ 737 Procedure where dower, curtesy or life estate exists.
If there is a tenant by the curtesy or other life estate, other than in any undivided share of any of the parties entitled, partition of the real estate shall not be made until the determination of the curtesy or life estate, unless upon the joint petition of the tenant by the curtesy or other life estate and 1 or more of the other parties entitled, in which case partition may be made among the parties entitled, subject to the rights of the tenant by the curtesy or other life estate. If there is a widow entitled to dower in the real estate, other than in any undivided share of any of the parties entitled, partition of her part as the widow shall be postponed until the determination of her estate. After assigning the widow's dower, partition of the residue may be made, or other proceedings had concerning it, in the same manner and to the same effect as if such residue were all the real estate, and after the determination of the widow's estate, partition of the part assigned to her in dower may be made, or other proceedings had concerning it.
Code 1852, §§ 1678, 1679; Code 1915, § 3287; Code 1935, § 3751; 25 Del. C. 1953, § 737; 70 Del. Laws, c. 186, § 1.;
§ 738 Advancements; treatment upon partition.
(a) If any child of an intestate or any issue of such child has received any lands, tenements or hereditaments as an advancement out of the intestate's estate, or by settlement of or by way of gift from the intestate in the intestate's own lifetime, or by means of purchase the consideration of which was paid or satisfied by the intestate, the lands, tenements or hereditaments shall be estimated in the partition, or distribution of the intestate's real estate, or proceeds of sale of real estate, as part thereof, and shall be held by the child or issue for or towards that child's or issue's share of the estate or proceeds.
(b) The settlement, gift or other advancement shall not be considered in determining or assigning the widow's dower.
Code 1852, § 1681; Code 1915, § 3288; Code 1935, § 3752; 25 Del. C. 1953, § 738; 70 Del. Laws, c. 186, § 1.;
§ 739 Assignment of dower without embracing residue.
Upon the petition of a widow entitled to dower, or of any other person entitled to her part, or of any other person interested, an order may be made assigning such part without embracing the residue. The assignment shall be made by like proceedings and in the same manner as in the case of partition of real estate.
Code 1852, §§ 1689, 1755; Code 1915, § 3289; Code 1935, § 3753; 25 Del. C. 1953, § 739; 70 Del. Laws, c. 186, § 1.;
§ 740 Election to take dower from proceeds of sale; investment or deposit of widow's share.
If there is a widow entitled to dower, and the return of the commissioners shows that there has been no partition of the residue after the assignment of her dower, she may, by petition, elect to take, in lieu of her dower by metes and bounds, an equivalent share of the proceeds of sale of the whole of the real estate. Thereupon, the Court may set aside the assignment of dower as made by the commissioners, and shall order the real estate to be sold. Out of the proceeds of the sale, after the payment of the costs of the proceedings, the Court may invest the share upon which the widow is entitled to receive the interest or may deposit the share in any bank or trust company in this State so that the widow shall receive the income during her life and the principal shall be paid to the other parties entitled after the death of the widow.
Code 1852, § 1696; Code 1915, § 3290; Code 1935, § 3754; 25 Del. C. 1953, § 740; 70 Del. Laws, c. 186, § 1.;
§ 741 Appointment of trustee for joint owner's widow with a mental disability.
If a parcener, tenant in common or joint tenant, or assignee of the interest, in real estate, dies leaving a widow with a mental disability, or a widow becomes mentally disabled before the assignment of dower and partition of the residue of the lands of the decedent, a trustee for the widow with a mental disability may be appointed by the Court of Chancery and proceedings for partition may be had in the manner and form as prescribed by § 911 of Title 12 [repealed].
§ 742 Appraisement of value of widow's dower; payment of widow's share and distribution of residue.
The Court of Chancery in which a partition proceeding may be pending, at any time prior to the decree of distribution, upon the petition of a widow entitled to dower in the whole or any part of the real estate which is the subject of the partition proceedings, or upon the petition of any party to such proceedings, may appraise the value of the widow's dower in the real estate, and in the decree of distribution order the appraised valuation shall be paid to the widow, and the residue paid to the other parties entitled thereto.
Code 1915, § 3292; Code 1935, § 3756; 25 Del. C. 1953, § 742.;
§ 743 Investment or deposit of share of persons holding curtesy interest or life estate; appraisement and payment upon petition.
A tenant by the curtesy or other life tenant of any real estate sold under the provisions of this chapter shall for the term of that tenant's life be entitled to have and receive the interest of the proceeds of sale of the real estate, and the Court of Chancery in which such partition is pending may invest the proceeds, after the payment of the costs of the proceedings, or deposit the proceeds in any bank or trust company of this State in such manner that the tenant by the curtesy or other life tenant shall receive the interest and income during that tenant's life, and the principal shall be paid, after the death of the tenant by the curtesy or other life tenant, to the other parties entitled. Upon the petition of the tenant by the curtesy or other life tenant, or any party to the proceeding, the Court may appraise the value of the interest and direct the payment to the tenant by the curtesy or other life tenant out of the proceeds of sale, the appraised valuation, and distribute the residue among the other parties entitled.
Code 1852, § 1703; Code 1915, § 3293; Code 1935, § 3757; 25 Del. C. 1953, § 743; 70 Del. Laws, c. 186, § 1.;
§ 744 Curtesy; barred by wrongful conduct of husband.
If a husband leaves his wife to go with an adulteress or willingly lives in adultery in a state of separation from his wife, not occasioned by her fault, in either case, unless his wife is reconciled to him and suffers him to dwell with her, or if he is convicted of wrongfully killing his wife, he shall forfeit his curtesy and all demands, as her husband, upon her real or personal estate and any estate, charge or benefit settled upon him, or upon trust for him, in lieu of curtesy.
§ 745 Real estate in more than 1 county; appointment of freeholders; effect of recording in another county.
(a) Where the real estate which is the subject of partition under this chapter lies in more than 1 of the counties of this State, the freeholders to make the partition may be selected from 1 county or from several counties, in the discretion of the Court. The Court shall order the part of the proceedings which relates to real estate in another county than that wherein the petition for partition is presented to be certified and recorded in the Court of Chancery in that county; and the record shall have all the effect of an original record.
(b) Satisfactions of the share or interest of parties entitled to the purchase money, secured by a recognizance entered into by the purchaser of lands in another county than that wherein the petition for partition is presented, entered upon the record of the county wherein the petition is presented by the county to which the proceedings are certified and recorded, shall be certified by the Clerk of the Court of Chancery of the other county noted on the record of the recognizance there, and the notation shall be considered as a satisfaction of the shares as though the satisfaction had been originally entered on the record of the county to which the proceeding is certified.
Code 1852, § 1707; Code 1915, § 3294; 35 Del. Laws, c. 196; Code 1935, § 3758; 25 Del. C. 1953, § 745.;
§ 746 Partition of several tracts held by same joint owners; power of commissioners and Court.
The Court of Chancery may make a decree for partition in 1 proceeding under this chapter of several tracts or parcels of land and premises held by the same persons as joint tenants, tenants in common or parceners, although the several tracts or parcels of land may have been derived by different titles, and although any 1 or more of the tenants or parceners may not hold a like share, proportion or interest in all of the several tracts or parcels. In such case it shall be competent for commissioners appointed under § 724 of this title to return a partition of a part of the lands and premises embraced in the proceeding, and to return the residue of the same without partition, and further proceedings shall be in accordance with the return so made. The Court may vary the terms of the commission as may be necessary to adapt it to cases contemplated by this section.
Code 1852, §§ 1710, 1711; Code 1915, § 3295; Code 1935, § 3759; 25 Del. C. 1953, § 746.;
§ 747 Partition of several tracts where some parties hold interest in all and other parties hold interest in part.
In a partition of several tracts or parcels of land held by the same persons, though by different titles or in different shares, as provided by § 746 of this title, if 1 or more of the persons entitled as joint tenants, tenants in common or parceners has some share, proportion or interest in all the tracts or parcels of land and premises named in the petition, and any other person is entitled as joint tenant, tenant in common or parcener to a share, proportion or interest in any 1 or more of the tracts or parcels of land, though not in all of them, the Court may in like manner make a decree for partition in 1 proceeding as aforesaid.
Code 1852, §§ 1710, 1711; Code 1915, § 3296; Code 1935, § 3760; 25 Del. C. 1953, § 747.;
§ 748 Power of commissioners to make return of partition of part of lands; procedure.
The commissioners appointed under § 724 of this title may, in any case, return a partition of a part of the lands and premises embraced in the proceedings for partition and return the residue without partition, and further proceedings shall be in accordance with the return so made. The Court may vary the terms of the commission as may be necessary to adapt it to cases contemplated by this section.
Code 1852, § 1730; Code 1915, § 3297; Code 1935, § 3761; 25 Del. C. 1953, § 748.;
§ 749 Certified copy of record as evidence.
A copy of any proceedings for partition had pursuant to this chapter, certified under the hand of the Register in Chancery of the county and the seal of the Court, shall be competent evidence of the proceedings therein stated in any court of law or equity.
Code 1852, § 1739; Code 1915, § 3299; Code 1935, § 3763; 25 Del. C. 1953, § 749.;
§ 750 Limitation of appeals.
No appeal shall lie from any order or decree of the Court of Chancery touching any of these premises, unless taken within 3 months from the date of the order or decree.
Code 1915, § 3300; Code 1935, § 3764; 25 Del. C. 1953, § 750.;
§ 751 Powers of Court of Chancery.
For the purpose of effectuating the provisions of this chapter, the Court of Chancery shall have, in addition to the jurisdiction and powers already conferred upon it, general equity powers concerning the subject matter of this chapter and authority to make any order or decree not inconsistent with the provisions of this chapter relating to causes in partition, or matters incidental or pertaining thereto, which the right or justice of the cause may demand. The Court of Chancery may make all rules and orders necessary for effectuating the provisions of this chapter.
Code 1915, §§ 3301, 3302; Code 1935, §§ 3765, 3766; 25 Del. C. 1953, § 751.;