of the lands mentioned or described in said receipt or certificate is in the person named therein, his heirs or assigns. 8 M. 99 (127). * 92. Land-office certificate of entry, etc., evidence of title. That the certificate of the register or receiver of any of the United States land-offices within this state, showing by whom, when and how, any lands within this state were entered under the homestead, pre-emption or timber-culture laws of the United States, shall be prima facie evidence, in all the courts of this state, that the person named therein was, at the date of such entry, the owner in fee of such lands. (1878, c. 52, § 2.) $93. (SEC. 85.) Patents and duplicates may be recorded-effect of record. Patents issued by the United States of land in the state, or duplicates thereof from the records in the general land-office of the United States, certified by the commissioner of such land-office, may be recorded in the registry of deeds of the county in which the land described in the patent is situated; and the record of such patents or duplicates, or copies of such records certified by the register of deeds, are evidence, in like manner and to the same extent, as the records, or transcripts thereof, of other conveyances of real estate. *S 94. Land-office receipts may be recorded-effect of record. That the duplicate, or receiver's final receipt, issued from the respective United States land-offices in this state, shall be entitled to record in the office of the register of deeds of the county in which the land therein described is located; and all such records shall have the same force and effect in law, with respect to notice and title, as the record of the patent to such land would have. (1878, c. 51, § 1.) $95. (SEC. 86.) Plats of surveys, etc., from land-office-certificate of county surveyor. All plats of surveys of public lands, certified by the register of the land-office of the district in which such land is situated, to be a true copy of the certified copy on file in his office of the original plat thereof, and all certificates, by the register of such land-office, of the surveys or entry and location of, or other facts in relation to, such lands, taken from the books of such land-office, or from the certificate indorsed on the copy of the original plat on file therein, are prima facie evidence of the facts therein stated. The certificate of the county surveyor, or any of his deputies, shall be admitted as legal evidence; but the same may be explained or rebutted by other evidence. 8 M. 99 (127): 12 M. 451; 21 M. 332. $96. (SEC. 87.) Conveyances, etc., records thereof and copies of records. All conveyances of real estate, and other instruments authorized by law to be recorded, and which are acknowledged or proved as provided by law. and, if the same have been recorded, the record or a transcript thereof, certified by the register in whose office the same is recorded, may be read in evidence without further proof; but the effect of such evidence may be rebutted by other competent testimony. 6 M. 1 (25); 9 M. 215 (230); 12 M. 255; 16 M. 457. $97. (SEC. 88.) Certificates and records of marriage. The original certificates and records of marriage, made by the judge, justice or minister, as prescribed by law, and the record thereof by the clerk of the district court, or a copy of such record duly certified by such clerk, shall be received, in all courts and places, as presumptive evidence of the fact of such marriage. *$ 98. Evidence of existence of corporation or partnership. In all actions brought by any corporation, or by any persons as copartners, or by the endorsers of any such corporation or copartners, upon any promissory note. bill of exchange, or other written instrument for the payment of money only, executed and delivered by the defendant to such corporation by its corporate name, or to such plaintiffs or copartners by their firm name, the production in evidence of the instrument upon which such action is brought shall be prima facie evidence of the existence of such corporation, and that the persons named as payees in such written instrument are, and at the time of the execution of said instrument were, such copartners. (1876, c. 32, § 3.) TITLE 11. CHARACTER, COMPETENCY, AND EFFECT OF EVIDENCE. § 99. (SEC. 89.) Fact of marriage, how proved. When the fact of marriage is required or offered to be proved before any court, evidence of the admission of such fact by the party against whom the proceeding is instituted, or of general repute, or of cohabitation as married persons, or any other circumstantial or presumptive evidence from which the fact may be inferred, shall be competent. 12 M. 476; 23 M. 528. § 100. (SEC. 90.) Evidence in prosecutions for counterfeiting bank-notes, etc. In all prosecutions for forging or counterfeiting any notes or bills of any banking company or corporation, or for uttering, publishing or tendering in payment as true, any forged or counterfeit bank-bills or notes, or for being possessed thereof with the intent to utter and pass them as true, the testimony of the president and cashier of such banks may be dispensed with, if their place of residence is without this state, or more than forty miles from the place of trial; and the testimony of any person acquainted with the signature of the president or cashier of such banks, or who has knowledge of the difference in the appearance of the true and counterfeit bills or notes thereof, may be admitted to prove that any such bills or notes are counterfeit. § 101. (SEC. 91.) In prosecutions for uttering counterfeit treasury notes, etc. In all prosecutions for forging or counterfeiting any note, certificate, bill of credit, or security issued on behalf of the United States, or on behalf of any state or territory, or for uttering, publishing, or tendering in payment as true, any such forged or counterfeit note, certificate, bill of credit, or security, or for being possessed thereof with intent to utter and pass the same as true, the certificate under oath of the secretary of the treasury, or of the treasurer of the United States, or of the secretary or treasurer of any state or territory on whose behalf such note, certificate, bill of credit or security purports to have been issued, shall be admitted as evidence for the purpose of proving the same to be forged or counterfeit. § 102. (SEC. 92.) In prosecutions for rape. Proof of actual penetration into the body is sufficient to sustain an indictment for rape, or for the crime against nature. § 103. (SEC. 93.) Confession, when inadmissible as evidence. A confession of a defendant, whether made in the course of judicial proceedings, or to a private person, cannot be given in evidence against him, when made under the influence of fear produced by threats; nor is it sufficient to warrant his conviction, without evidence that the offence charged has been committed. 4 M. 277 (368). $104. (SEC. 94.) Uncorroborated testimony of accomplice. A conviction cannot be had upon the testimony of an accomplice, unless he is corroborated by such other evidence as tends to convict the defendant of the commission of the offence, and the corroboration is not sufficient if it merely shows the commission of the offence or the circumstances thereof. § 105. (SEC. 95.) Evidence in prosecutions for libel--rights of jury. In all criminal prosecutions or indictments for libel, the truth may be given in evidence; and if it appears to the jury that the matter charged as libellous is true, and was published with good motives and justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. § 106. (SEC. 96.) Divorces not granted on sole testimony of parties. Divorces shall not be granted on the sole confessions, admissions or testimony of the parties, either in or out of court. 6 M. 315 (458). 9-11. CHAPTER LXXIV. ACTIONS FOR THE PARTITION OF REAL PROPERTY. SECTION. SECTION. 29-30. 38-40. 41. 42-44. 22-24. Sales, how made-notice-subject to life 45. estates-including life estates. 25-28. Gross sum allowed for dower, etc-deter mination of amount to be allowed -of amount to be invested-duty of court, when persons entitled are unknown Inchoate right of dower and future estates -release by wife-payment to husband. Terms of sale to be made known-lots to be sold separately-who may not buy. Report of sale-confirmation-conveyances -purchase by part-owner or lien-holderrecord and effect of conveyance-liens on undivided interests barred, when. Disposal and investment of proceeds belonging to unknown owners, etc--duty of clerk of court. Compensation, when partition cannot be made equal. Payment to guardian of share of infant or insane person-consent to partition and release by guardian. Proceedings when the state is a party-apportionment of costs, etc., among the parties. § 1. Action for partition or sale, who may bring. When two or more persons are interested in real property, as joint tenants, or as tenants in common, in which one or more of them have an estate of inheritance, or for life or years, an action may be brought by one or more of such persons against the others, in the district court of the proper county, for a partition thereof, according to the respective rights and interests of the persons interested therein, or a sale of such property, or a part of it, if it appears that a partition cannot be had without great prejudice to the owner. 19 M. 167. § 2. Summons, to whom addressed. The summons shall be addressed by name to all the owners and lien-holders who are known, and generally to all persons unknown, having or claiming an interest in the property. 14 M. 13. § 3. Requisites of complaint. The interest of all persons in the property, whether by way of ownership or lien, and whether such persons are known or unknown, shall be set forth in the complaint specifically and particularly, as far as known to the plaintiff; and if any one or more of the parties, or the share or quantity of interest of any of the parties, is unknown to the plaintiff, or uncertain or contingent, or the ownership of the inheritance depends upon executory devise, or the remainder is a contingent remainder, so that such parties cannot be named, that fact shall be set forth in the complaint. The complaint shall also contain an allegation of the cash value of the property, and shall be verified. 14 M. 13. § 4. Rules as to civil actions applicable. Such action shall be governed by the rules and provisions applicable to civil actions, including the right of appeal, except that, when service of the summons is made by publication, it shall be accompanied by a brief description of the property sought to be divided, and except as herein otherwise expressly provided. § 5. Title, etc., to be established before judgment. Judgment of partition shall not be rendered in any case until the title to the property and the rights of the parties are established by evidence, unless upon written stipulation of the parties to be affected thereby. § 6. Judgment for partition-referees. The title and rights of the parties, respectively, being duly proved or admitted, the court shall render judginent that partition be made accordingly, and appoint three disinterested and judicious citizens of the county, referees, to make partition of the estate, and set off each share of the several persons interested, according to their respective rights as determined in the action. $7. Duty of referees in making partition-report. When partition is made, the referees shall divide the property, and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties, as determined by the court, designating the several portions by proper landmarks, and may employ a surveyor, with the necessary assistants, to aid them therein. They shall make report of their proceedings, specifying the manner of executing their trust, describing the property divided and the shares allotted to each party, with a particular description of each share. 8. Final judgment on report-effect thereof. The court may confirm or set aside the report, and, if necessary, appoint new referees; upon the report being confirmed, judgment shall be rendered that such partition be effectual forever, which judgment is binding and conclusive: First.-On all the parties named therein, and their legal representatives, who have at the time any interest in the property divided, as owners in fee, or as tenants for years, or as entitled to the reversion, remainder or inheritance of such property, after the determination of a particular estate therein, or who, by any contingency, may be entitled to a beneficial interest in the property, or who have an interest in an individual share thereof, as tenants for years, for life, by the curtesy, or in dower. Second.-On all persons interested in the property who may be known, to whom notice has been given of the application for partition, by publication; and, Third.-On all other persons claiming from such parties or persons, or either of them. 19 M. 167. $9. What persons not affected by judgment. But such judgment and partition cannot affect tenants, or persons having claims as tenants, in dower, by the curtesy, or for life, to the whole of the property which is the subject of the partition; nor can such judgment and partition preclude any person, except such as are specified in the last section, from claiming title to the property in question, or from controverting the title of the parties between whom the partition is made. 19 M. 167. $ 10. Liens, how affected by partition. When there is a lien on an undivided interest or estate of any of the parties, such lien, if partition is made, is thenceforth a charge only on the share assigned to such party; but such share shall be first charged with its just proportion of the costs of the partition, in preference to such lien. § 11. Fees and expenses of referees-allowance and payment. The expenses of the referees, including those of a surveyor and his assistants, when employed, shall be ascertained and allowed by the court, and the amount thereof, together with the fees allowed by law to the referees, shall be paid by the plaintiff, and may be allowed as part of the charges. $12. Sale may be ordered, when -referees to sell. If it is alleged in the complaint, and established by evidence, that the property, or any part of it, is so situated that partition cannot be made without great prejudice to the owners, the court, except as provided in the next section, may order a sale thereof, and for that purpose may appoint one or more referees; or when, without such allegation and proof, referees are appointed to make partition, who report that the property, or any distinct portion thereof is so situated that a partition thereon cannot be made without great prejudice to the owners, and the court is satisfied that such report is correct, it may thereupon, by an order, direct the referees to sell the property or portions so situated. § 13. No sale allowed, when. When there are liens on the property amounting to more than the value thereof as stated in the complaint, or when, after due examination, it appears probable that the property will not sell for a sum in cash equal to the amount of the liens thereon existing, with costs and expenses of sale, no sale shall be made. § 14. Property not capable of division may be set off or sold. When the premises consist of a mill or other tenement which cannot be divided without damage to the owners, or when any specified part of the estate is of greater value than either party's share, and cannot be divided without damage to the owners, the whole estate, or the part thereof so incapable of division, may be set off to any one of the parties who will accept it, he paying to any one or more of the others such sums of money as the referees award to make the partition just and equal; or the referees may assign the exclusive occupancy and enjoyment of the whole, or the part, to each of the parties alternately, for certain specified times, in proportion to their respective interests, § 15. Occupant liable to cotenants, how. When the whole or any specific part of the premises is thus assigned, the person entitled for the time being to the exclusive occupancy shall be liable to his cotenants for any injury to the premises occasioned by his misconduct, as a tenant for years, under a common lease without express covenants, would be liable to his landlord; and the other tenants in common may have their remedy therefor against him by action, jointly or severally at their election. $ 16. Rights of cotenant in occupancy of premises assigned. While an estate is in the exclusive occupancy of a cotenant under such an assignment, he shall be entitled to the same remedy against whoever trespasses upon, or otherwise injures the premises, as if he held the same under a lease for the term for which they were so assigned to him; and he and all the other tenants in common shall be entitled to recover such other and further damages as they have sustained by the same trespass or injury, in like manner as if the premises had been leased by them. Joint damages recovered by such tenants in common, by force of this or the preceding section, shall be apportioned and divided among them, according to their respective rights, by the court in which the judgment is recovered. § 17. Life estates, etc., how disposed of in case of sale. When a part of the property only is ordered to be sold, if there is an estate by the curtesy, in dower, or for life or years, in an undivided share of the property, the whole of such estate may be set off in any part of the property not ordered to be sold. $ 18. Liens to be proved, etc. In every case, proof shall be made of the existence, priority and amount of any liens on the property of which partition is sought, in such manner, and upon such notice to those interested, as the court shall direct; and if said liens do not amount to the value of the premises as admitted or proved, a sale may be ordered, by referees, under the direction of the court. § 19. Proceeds of sale, how applied. The proceeds of the sale of the incumbered property shall be applied, under the direction of the court, as follows: First. To pay its just proportion of the general costs of the action; Third. To satisfy and cancel of record the several liens, in their order of priority, by payment of the sums due and to become due; the amount remaining due to be verified by affidavit at the time of payment; Fourth. The residue among the owners of the property sold, according to their respective shares. § 20. Sale not to be delayed, etc. The proceedings to ascertain the amount of incum |