owner, for the share of any known owner of full age, who desires to have it invested.

$1576. Immediately after completing the sale, the officer making it must file with the clerk his report thereof, under oath, containing a description of each parcel sold, the name of the purchaser thereof, and the price at which it was sold,

State Rep 25 App. Div.

145.

§ 1577. If the sale is confirmed by the court, a final 14 N. Y. judgment must be entered, confirming it accordingly; directing the officer making it to execute the proper conveyances, and take the proper securities, pursuant to the sale; and also directing concerning the application of the proceeds of the sale. Such a final judgment is binding and conclusive upon the same persons, upon whom a final judgment for partition is made binding and conclusive by section one thousand five hundred and fifty-seven of this act; and it effectually bars each of those persons, who is not a purchaser at the sale, from all right, title, and interest in the property sold.

§ 1578. [Am'd 1883.] Such a final judgment is also a bar against each person, not a party, who has, at the time when it is rendered, a general lien, by judgment or decree, on the undivided share or interest of a party, if notice was given to appear before the referee and make proof of liens, as prescribed in section fifteen hundred and sixty-two of this act, and also against each person made a party, who then has a specific lien on any such undivided share or interest; but a person having any such specific lien appearing of record at the time of the filing of the notice of the pendency of the action, who is not made a party, is not affected by such judgment.

1579. Where final judgment, confirming a sale, is rendered, the costs of each party to the action, and the expenses of the sale, including the officers' fees, must be deducted from the proceeds of the sale, and each party's costs must be paid to his attorney. But the court may, in its discretion, direct that the costs and expenses of any trial, reference, or other proceeding in the action, be paid out of the share of any party in the proceeds, or may render judgment against any party therefor. Where a proportion of the proceeds is to be paid to, or invested for the benefit of, any person, as prescribed in any provision of this article, the amount thereof must be determined by the residue of the entire proceeds, remaining after deducting the costs and expenses chargeable against them.

§ 1580. The proceeds of a sale, after deducting therefrom the costs and expenses chargeable against them, must be awarded to the parties whose rights and interests have been sold, in proportion thereto. The sum chargeable upon any share, to satisfy a lien thereon, must be paid to the creditor, or retained, subject to the order of the court;

Misc. 393;

R. 373.

and the remainder, except as otherwise prescribed in this article, must be paid, by the officer making the tale, to the party owning the share, or his legal representatives, or into court for his use.

§ 1581. Shares of Infants. [Am'd 1887, 1892, 1897, 23 Civ. Fro. amendment to take effect September 1, 1897.]--Where a party entitled to receive a portion of the proceeds is an infant, the court may direct it to be invested in permanent securi ties in the name and for the benefit of the infant, or it may direct it to be paid over to the general guardian of the said infant when the guardian shall have executed to such infant a bond with two sureties which shall be approved by the court; or, if any of the moneys arising from the proceeds of such sale shall have been paid to the county treasurer, and on due proof that such money has remained uninvested in permanent securities for the space of three months, may direct the same to be paid to the general guardian of such infant upon his giving an undertaking in an amount and with securities satisfactory to the court for the faithful execution of his trust. In the case of an infant residing without the state, and having in the state or country where he or she resides a general guardian, or person duly appointed under the laws of such state or country, to the control and entitled, by the law of such state or country, to thecustody of the money of such infant, the court, upon satisfactory proof of such facts and of the sufficiency of the bond or security given by such general guardian or person in such state or country by the certificate of a judge of a court of record of such state or country, or otherwise, may direct that the portion of such infant arising upon such sale shall be paid over to such general guardian or person.

124 N. Y. 500.

§ 1582. [Am'd 1889, 1893.] Where a person has been made a defendant as an unknown person, or where the name of a defendant is unknown, or where the summons has been served upon a defendant without the State, or by publication, and he has not appeared in the action, the court must direct his portion to be invested in permanent securities, at interest, for his benefit, until claimed by him or his legal representatives; but after the lapse of twenty-five years from the time of the payment into court, or to the treasurer of any county, of any portion of the proceeds of the sale of real property, for unknown heirs, heretofore or hereafter to be made in any action of partition, without any claim therefor having been made by any person entitled thereto, and upon there being made and presented to the court, at a special term thereof, proof, by petition or otherwise, showing to the satisfaction of the court, that due inquiry for such unknown heirs, or their representatives, has been made and that they cannot be found, and that no claim has been made for such portion of s id proceeds by any person entitled thereto, proceedings shall thereupon be taken in said court, and an investigation had therein as to the heirship, death or whereabouts of such unknown heirs or their representatives, and

§ 1582

PARTITION.

20a

as to the known heirs of the ancestor of such unknown heirs, the next of kin, representatives and distributees of such known heirs, and as to all persons interested in such proceeds, and their respective interests therein, and the said court shall, by an order made in the action, direct that a notice entitled in the action and signed by the petitioner, or his attorney, and directed to such unknown heirs or thei: representatives, and to known heirs, their next of kin, representatives, or distributees, and all persons interested in such proceeds, be served upon them by the publication thereof, the same to be published once in each week for six successive weeks in a newspaper published in the county where the action was brought, and in such other newspapers as the court may direct, ordering and requiring such unknown heirs, or their representatives, and all known heirs, their next of kin, or representatives, and all persons interested in such proceeds, and each of them to be and appear in said court at a special term thereof, at a time and place to be specified in said order and notice, and at least six weeks from the date of the first publication of such notice, to then and there establish their heirship and identity, kinship and interest, and submit any proof, as to such unknown heirs, or their representatives, and the known heirs, their next of kin, representatives or distributees, and all persons interested and their interest in such proceeds, they may desire, and that in case of their default in so doing, that the said proceeds will be distributed and paid over to the known heirs of the ancestor from whom such unknown heirs derived title thereto, and to their heirs, next of kin, representatives, distributees and assigns, and that they and each of them shall thereafter be forever barred of and from all and every cause or causes of action for such proceeds, or on account thereof, or growing out of the distribution thereof, and of and from all right, title, claim and interest in and to such proceeds, and shall be deemed to have surrendered all right, claim and interest in and to such proceeds. The order must contain a direction that a copy of the notice must be served on each of the persons named in the order, if within the State, in the manner prescribed for the service of a summons on a defendant in an action in the supreme court, at least twenty days before the time specified in the notice. The publication of such notice, as required by said order, is hereby made and shall be deemed and taken for all purposes to be due and complete service upon each and every of such unknown heirs or their representatives, and the known heirs, their next of kin, and representatives, and all persons interested in such proceeds, of due notice of the proceedings to distribute and pay out such proceeds, and shall be conclusive upon each and all of them. Proof of such personal service may be made by the affidavit of the person making the same, and proof of the publication of such notice may be made by affidavit of the publisher of such paper or papers. At the time and place specified in the said order and notice, such unknown heirs or their representatives, and all known heirs, their next of kin, representatives or distributees, devisees, and all persons interested in such proceeds, shall appear in court, in person or by attorney, and make proof

establishing their heirship and identity, kinship and interest in such proceeds, a d upon proof being made to the satisfaction of the court of the heirship and identity of the unknown heirs, the proceeding for distribution shall be dismissed. And if such unknown heirs or their representatives, do not so appear in court at the time and place specified in such notice and order, to establish their heirship and identity, kinship or interest, they and each of them, and every person claiming under or through them, shall thereafter be torever baried of and from all and every cause or causes of action for such proceeds, or on account thereof, or growing out of the distribution of such proceeds, and of and from all right, title, claim and interest in and to such proceeds, and shall be deemed to have surrendered all right, claim and interest in and to such proceeds. And upon proof being made of such publication, and showing to the satisfaction of the court that such unknown heirs or their representatives cannot be found, or are dead, the said court shall have power to decree accord ngly, and to decree that the share or interest of such unknown heirs in such real property was vested, at the time of such sale, in the known heirs of the ancestor from whom such unknown heirs derived title thereto, and to decree that the unclaim d portion of such proce ds was vested at the t me of such payment in such known heirs, a d that such heirs, their heirs, next of kin, representatives, distribu ees, devisees and assigns, are entitled thereto; and the said court shall make an order in such action, directing the payment to them or their assigns, of the respective shares or portions of, or interest in such proceeds to which they are entitled; and which order shall be entered in the office of the clerk of the county here the original action was brought, and after having been so entered for three months, shall be conclusive evidence of the regu larity of the proceedings upon which it is based, and of all the facts set forth therein; and, upon serving upon the county treasurer a certified copy of such order, the tre surer shall so pay over and distribute such proceeds, after deducting his lawful commissions, and shall thereupon be exempt from all liability on account thereof; and if any such proceeds shall have been paid over by any county treasurer to the treasurer of the State of New York, under the provisions of sectio seven hundrel and fifty-three of this act due notice of said applications and proceedings shall be given to the comptroller of the State of New York, and the said pro ceeds shall be paid out by the treasurer of the State of New York, as provided by sections seven hundred and fifty one and seven hundred and fifty-three of this act, and upon such payment he shall thereupon be exempt from all liabili y on account thereof.

1583 Where a portion of the proceeds, representing an undivided share or interest, is invested for the benefit of a tenaat for life, or for years, or of a widow. as prescribed in the foregoing provisions of this article, the court must cause it to be invested in permanent securities, at interest, and the interest to be paid, from time to time as it accrues, to the person for whose benefit it is invested, while his or her right continues.

1584. The court may, in its discretion, require any person, before he receives his portion of the proceeds of the sale, to give such security as it directs, to the people, or to such parties or other persons as it prescribes, to refund the same, or a portion thereof, with interest, if it thereafter appears that he was not entitled thereto

§ 1585. A security taken under any provision of this article, except as otherwise specially prescribed therein, must be taken in the name and official title of the county treasurer of the county in which the property sold is situated. He, and his successors in office, must hold the same for the use and benefit of the persons interested, subject to the order of the court.

1586. The court may, in its discretion, and upon such terms and conditions as justice requires, make an order, allowing a person, interested in a security specified in the last section, to maintain an action thereupon in the name of the county treasurer.

§ 1587. Where it appears that partition cannot be made equal between the parties, according to their respective rights, without prejudice to the rights or interests of some of them, the final judgment may award compensation to be made by one party to another for equality of partition. But compensation cannot be so awarded against a party who is unknown, or whose name is unknown. Nor can it be awarded against an infant, unless it appears, that he has personal property sufficient to pay it, and that his interests will be promoted thereby.

1588. If, upon the death of one of two or more plaintiffs, or one of two or more defendants, in an action for partition, the interest of the decedent in the property passed to a person, not a party to the action, the latter may be made defendant by the order of the court; and a supplemental summons may be issued, to bring him in accordingly.

1589. Nothing contained in this article prevents the 50 Hun, 199 court from adjusting, in the interlocutory or final judg ment, or otherwise, as the case requires, the rights of one or more of the parties, as against any other party or parties, by reason of the receipt, by the latter, of more than his or their proper proportion of the rents or profits of a share, or part of a share.

Consol

§ 1590. [Am'd 1895, amendment to take effect January 1, §1151, subd. 1896.] Where an infant, idiot, lunatic, or habitual drunkard, 1, holds real property in joint tenancy or in common, the Act. general guardian of the infant or the committee of the idiot, lunatic or habitual drunkard, may apply to the supreme court, or to the county court of the county, wherein the real property is situated for authority to agree to a partition of the real property.