CHAPTER 4. PARTITION PROCEEDINGS
IC 32-17-4
Chapter 4. Partition Proceedings
IC 32-17-4-1
Compelling partition; defendants
Sec. 1. (a) The following persons may compel partition of landheld in joint tenancy or tenancy in common as provided under thischapter:
(1) A person that holds an interest in the land as a joint tenantor tenant-in-common either:
(A) in the person's own right; or
(B) as executor or trustee.
(2) If the sale of the estate of a decedent who held an interest inthe land as a joint tenant or tenant in common is necessary, thedecedent's administrator or executor.
(b) A trustee, an administrator, or an executor may be made adefendant in an action for the partition of real estate to answer as toany interest the trustee, administrator, or executor has in the realestate.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-2
Petition to partition; description of premises
Sec. 2. (a) A person described in section 1(a) of this chapter mayfile a petition to compel partition in the circuit court or court havingprobate jurisdiction of the county in which the land or any part of theland is located.
(b) A petition filed under subsection (a) must contain thefollowing:
(1) A description of the premises.
(2) The rights and titles in the land of the parties interested.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-3
Proceedings, practice, and pleadings
Sec. 3. The proceedings, practice, and pleadings for an actionunder this chapter are the same as in civil suits, except as otherwiseprovided in this chapter.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-4
Interlocutory judgments; sale of land
Sec. 4. (a) If:
(1) upon trial of any issue;
(2) upon default; or
(3) by consent of parties;
the court determines that partition should be made, the court shallaward an interlocutory judgment that partition be made to partieswho desire partition.
(b) In issuing a judgment under subsection (a), the court shall: (1) specify the share assigned to each party; and
(2) take into consideration advancements to heirs of a persondying intestate.
(c) If the court issues a judgment under subsection (a), any part ofthe premises remaining after the partition belongs to the personsentitled to the premises, subject to a future partition.
(d) If:
(1) upon trial of any issue;
(2) upon default; or
(3) by confession or consent of parties;
the court determines that the land for which partition is demandedcannot be divided without damage to the owners, the court may orderthe whole or any part of the premises to be sold as provided undersection 12 of this chapter.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-5
Will expressing intent of testator
Sec. 5. Notwithstanding section 4 of this chapter, a court may notorder or affirm partition of any real estate contrary to the intention ofa testator expressed in the testator's will.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-6
Freeholders appointed to make partition
Sec. 6. Upon judgment of partition, the court shall appoint three(3) individuals as commissioners who:
(1) are disinterested resident freeholders;
(2) reside and own land in the county in which court is held;and
(3) are not related to any of the parties;
who shall make partition of the land in accordance with the judgmentof the court.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-7
Commissioners; oath
Sec. 7. (a) Before discharging their duties, the commissionersappointed under section 6 of this chapter shall take an oath tofaithfully perform the duties of their trust.
(b) The oath described in subsection (a) must:
(1) if taken in open court, be entered in the court's order book;and
(2) if not taken in open court, be endorsed on the warrant issuedto the commissioners to make the partition.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-8
Joint shares
Sec. 8. Two (2) or more persons may, if they choose, have their
shares set off together.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-9
Commissioners report required
Sec. 9. (a) The commissioners shall report to the court regardingtheir activities under this chapter.
(b) The commissioners shall make the report required under thissection:
(1) in open court; or
(2) by signing and swearing to the report before a personauthorized to administer oaths.
(c) A report filed under this section must specify the sharesassigned to each party by:
(1) divisions;
(2) lots;
(3) metes and bounds; or
(4) plats.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-10
Report of commissioners; judgment of partition; recording
Sec. 10. If the court confirms a report filed under section 9 of thischapter, the court shall:
(1) spread the report on the order book;
(2) enter a judgment of partition in accordance with the report;and
(3) record the report and judgment in a separate book kept forthat purpose.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-11
Setting aside report to partition
Sec. 11. (a) Before confirming a report filed under section 9 ofthis chapter, the court may, if the court determines that good causeexists, set aside the report.
(b) If the court sets aside a report under subsection (a):
(1) the court may:
(A) recommit the duty of partition to the samecommissioners; or
(B) appoint other commissioners in the same manner as theoriginal commissioners; and
(2) the commissioners shall perform the duties described in thischapter.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-12
Sale of land; division not possible without damage to owners
Sec. 12. (a) If the commissioners report to the court that the wholeor part of the land of which partition is demanded can not be divided
without damage to the owners, the court may order the whole or anypart of the land to be sold at public or private sale on terms andconditions prescribed by the court.
(b) If the court orders a sale under this section, the order shallprovide for reasonable public notice of the sale.
(c) If the court orders a sale under this section but does not orderthe sale to be made for cash, the court shall require that the purchasermake a cash payment of at least one-third (1/3) of the purchase priceto the commissioner appointed under section 14 of this chapter at thetime of the sale.
(d) Land sold under this section may not be sold for less than:
(1) if sold at public sale, two-thirds (2/3) of its appraised value;and
(2) if sold at private sale, its appraised value.
The court shall determine the appraised value of the land in the samemanner as in cases of sales of land on execution.
(e) If only a part of land is sold under this section, the remaindermay be partitioned as provided under this chapter.
(f) If the value of land ordered by the court to be sold at privatesale does not exceed one thousand dollars ($1,000), the land may, inthe discretion of the court, be sold without any notice of sale beinghad or given.
(g) In all cases, the purchaser of land sold under this section hasrights in all crops planted on the land after the sale.
(h) The court may:
(1) approve reports of sale by commissioners in partitionproceedings; and
(2) order the deed delivered to the purchaser.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-13
Partial partition; assignment of shares
Sec. 13. If the court confirms partial partition:
(1) the shares assigned are full shares; and
(2) the residue reserved for sale is discharged from all title orclaim of the parties receiving assignment of their shares underthe partition.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-14
Commissioners to sell land; bond
Sec. 14. (a) If the court orders a sale under section 12 of thischapter, the court shall appoint a commissioner, other than acommissioner appointed to make partition, to conduct the sale.
(b) A commissioner appointed under this section shall file a bondpayable to the state of Indiana in an amount determined by the court,conditioned for the faithful discharge of the duties of thecommissioner's trust.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-15
Deeds and conveyances; mortgages securing deferred payments
Sec. 15. (a) If the court determines that:
(1) land is sold under section 12 of this chapter for cash; or
(2) land is sold under section 12 of this chapter for partial creditand that the first or cash payment of the purchase price is paid;
the court shall order the commissioner appointed under section 14 ofthis chapter, or some other person, to execute a conveyance to thepurchaser.
(b) A conveyance made under this section bars all claims of theprior owners of the land as if the prior owners had executed theconveyance.
(c) If partial credit is given for land sold under section 12 of thischapter, the court shall, at the time the court orders the conveyanceto be made under this section, also order and direct that, concurrentlywith the execution of the conveyance, the purchaser shall execute tothe commissioner a mortgage upon the land to secure the deferredpayments of the purchase price of the land.
(d) The commissioner shall place a mortgage executed under thissection upon record as required by law.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-16
Purchase of land by commissioners
Sec. 16. Commissioners appointed to make partition, or to sell,may not purchase the land partitioned or sold by the commissioners.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-17
Proceeds from sale of land
Sec. 17. The commissioner shall pay the proceeds of a sale underthis chapter after payment of just costs and expenses to the personsentitled to the proceeds according to their respective shares, underthe direction of the court.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-18
Commissioners to make partition; number performing duties;vacancies
Sec. 18. (a) Any two (2) of the persons named as commissionersto make partition may perform the duties required by this chapter.
(b) The court may fill a vacancy of a commissioner.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-19
Commissioners; vacancy; effect
Sec. 19. (a) The occurrence of a vacancy does not invalidate theprevious acts of the commissioners.
(b) A successor commissioner shall take up and continue theproceedings, which are as valid as if the proceedings had been done
by the commissioners first appointed.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-20
Commissioners; allowances
Sec. 20. The court shall provide an allowance, in an amount thatthe court determines to be reasonable:
(1) to the commissioners for their services; and
(2) for surveying, marking, chaining, platting, and executing thenecessary conveyances.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-21
Costs; expenses; counsel fees
Sec. 21. (a) All costs and necessary expenses, includingreasonable attorney's fees for plaintiff's attorney, in an amountdetermined by the court, shall be awarded and enforced in favor ofthe parties entitled to the costs and expenses against the partitioners.
(b) The court shall assign costs and expenses awarded undersubsection (a) against each partitioner as the court may determine inequity, taking into consideration each partitioner's relative interest inthe land or proceeds apportioned.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-22
Opening and reviewing closed proceedings
Sec. 22. Upon showing sufficient cause, a party to proceedingsunder this chapter who was not served with summons may, not morethan one (1) year after a partition is confirmed, appear and open theproceedings, and obtain a review of the partition.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-23
Partition of fee and life estates
Sec. 23. A:
(1) person that owns:
(A) an undivided interest in fee simple in any lands; and
(B) a life estate in:
(i) the remaining part of the land; or
(ii) any part of the remaining portion of the land; or
(2) person that owns a fee in the land described in subdivision(1) that is subject to the undivided interest in fee and the lifeestate in the land;
may compel partition of the land and have the fee simple interest inthe land set off and determined in the same manner as land ispartitioned under Indiana law.
As added by P.L.2-2002, SEC.2.
IC 32-17-4-24
Lots or out-lots; streets and alleys Sec. 24. (a) In a proceeding for the partition of real estate:
(1) in a state court; and
(2) in which a person less than eighteen (18) years of age is aparty in interest;
the commissioners appointed to make the partition may lay off intolots or out-lots, streets, and alleys, any land included in the partitionand may make a plat of the lots or out-lots, streets, and alleys andsubmit the plat to the court for approval or rejection.
(b) If a plat submitted under subsection (a) is approved by thecourt:
(1) the commissioners appointed to make the partition shallacknowledge the plat in open court;
(2) the plat must be recorded as other similar plats of like natureare recorded; and
(3) the plat is legally valid as if the plat were made by a legalproprietor of the lands who is at least eighteen (18) years of age.
(c) The court shall determine, upon the return by thecommissioners of a plat described in subsection (b), whether it is inthe interest of the parties for the land that is the subject of thepartition proceeding to be laid off into lots or out-lots, streets, andalleys. If the court determines that it is in the interest of the parties,the appointed commissioners may partition the land as in other caseswithout detriment to the interested parties. If partition of the land isnot practicable without detriment to the interested parties, the lots orout-lots may be sold by order of the court.
As added by P.L.2-2002, SEC.2.