As Introduced 1
122nd General Assembly 4
Regular Session S. B. No. 88 5
1997-1998 6
SENATOR LATTA 8
10
A B I L L
To amend sections 5307.04, 5307.05, 5307.06, 11
5307.07, 5307.08, 5307.09, 5307.12, 5307.15, 12
5307.17, and 5307.18 of the Revised Code to
change the qualifications and required number of 13
commissioners in partition actions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 15
Section 1. That sections 5307.04, 5307.05, 5307.06, 16
5307.07, 5307.08, 5307.09, 5307.12, 5307.15, 5307.17, and 5307.18 17
of the Revised Code be amended to read as follows: 18
Sec. 5307.04. If the court of common pleas finds that the 27
plaintiff in an action for partition has a legal right to any 28
part of the estate, it shall order partition thereof OF THE 29
ESTATE in favor of the plaintiff or all INTERESTED parties in 30
interest, appoint three ONE SUITABLE disinterested and judicious 32
freeholders of the vicinity PERSON to be commissioners THE 34
COMMISSIONER to make the partition, and order ISSUE a writ of 35
partition to issue. THE COURT ON ITS OWN MOTION MAY, AND UPON 36
MOTION OF A PARTY OR ANY OTHER INTERESTED PERSON SHALL, APPOINT
ONE OR TWO ADDITIONAL SUITABLE PERSONS TO BE COMMISSIONERS. IF 37
THE ESTATE TO BE PARTITIONED EXTENDS BEYOND THE COUNTY IN WHICH 38
THE ACTION IS COMMENCED, THE COURT MAY APPOINT A SEPARATE 39
COMMISSIONER OR COMMISSIONERS, NOT TO EXCEED THREE, TO MAKE THE 40
PARTITION OF THAT PORTION OF THE ESTATE LOCATED IN THE OTHER 41
COUNTY.
Sec. 5307.05. The A writ of partition ISSUED UNDER SECTION 50
5307.04 OF THE REVISED CODE may be directed to the sheriff of any 51
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of the counties in which any part of the estate lies, and shall 52
command such THE sheriff that, by the oaths of the COMMISSIONER 54
OR commissioners who are provided for in section 5307.04 of the 56
Revised Code, he, THE SHERIFF shall cause to be set off and 57
divided to the plaintiff or each INTERESTED party in interest, 59
such WHATEVER part and proportion of the estate as the court of 61
common pleas orders.
The oaths of the COMMISSIONER OR commissioners may be 63
administered by the sheriff. 64
Sec. 5307.06. In making a partition, the COMMISSIONER OR 73
commissioners provided for in section 5307.04 of the Revised Code 75
shall view and examine the estate, and, on their oaths, AND 77
having due regard to the improvements, situation, and quality of 78
the different parts, set it apart in such lots as THAT will be 79
most advantageous and equitable. 81
If the COMMISSIONER OR commissioners set such THE estate 83
apart in lots, it shall be surveyed and platted in compliance 85
with sections 711.001 to 711.15 of the Revised Code and with 86
rules adopted pursuant to those sections.
Sec. 5307.07. When partition of more than one tract is 95
demanded, the COMMISSIONER OR commissioners provided for in 97
section 5307.04 of the Revised Code shall set off to each 99
plaintiff or INTERESTED party in interests his THE PLAINTIFF'S OR 100
INTERESTED PARTY'S proper proportion in each of the several 103
tracts unless the tracts are owned by the same proprietors in
like proportion in each tract, in which case the share of any 104
proprietor, in all the tracts, may be set off to him THE 106
PROPRIETOR according to the best discretion of such THE 108
COMMISSIONER OR commissioners. If the COMMISSIONER OR 109
commissioners divide any tract, it shall be surveyed and platted 112
in compliance with sections 711.001 to 711.15 of the Revised
Code and with rules adopted pursuant to those sections. 113
Sec. 5307.08. Before a writ of partition is issued UNDER 122
SECTION 5307.04 OF THE REVISED CODE, the person of whom partition 124
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is demanded may appear in the court of common pleas in person or 125
by attorney, and consent to a partition of the estate agreeable 126
to the prayer and facts set forth in the petition, which amicable 127
partition, when made and recorded, shall be valid and binding 128
between the parties to the partition. In such cases, IN WHICH A 129
REQUESTED PARTITION IS CONSENTED TO UNDER THIS SECTION and in all 130
cases in which the lands are divided among the parties by the 132
COMMISSIONER OR commissioners provided for in section 5307.04 of 135
the Revised Code, the court shall order the sheriff to execute
and deliver a deed to each person entitled to a deed for the 136
portion set off and assigned to him THE PERSON. Land divided 137
pursuant to this section shall be surveyed and platted in 139
compliance with sections 711.001 to 711.15 of the Revised Code 140
and with rules adopted pursuant to those sections. 141
Sec. 5307.09. When the COMMISSIONER OR commissioners 150
provided for in section 5307.04 of the Revised Code are of 152
opinion that the estate cannot be divided according to the demand 154
of the writ of partition without manifest injury to its value,
they THE COMMISSIONER OR COMMISSIONERS shall return that fact to 156
the court of common pleas with a just valuation of the estate. 157
If such THE court approves the return, and IF one or more of the 158
parties elects to take the estate at such THE appraised value, it 159
shall be adjudged to them, upon their paying to the other parties 161
their proportion of its appraised value, according to their 162
respective rights, or securing it as provided in section 5307.10 163
of the Revised Code.
Sec. 5307.12. A sale of an estate under section 5307.11 of 172
the Revised Code shall be made at the door of the courthouse, 173
unless for good cause the court of common pleas directs it to be 175
made on the premises. The sale shall be conducted as upon 176
execution, except that IT is unnecessary to appraise the estate; 177
but it shall not be sold for less than two thirds of the value 178
returned by the COMMISSIONER OR commissioners provided for in 179
section 5307.04 of the Revised Code. Unless by special order, on 181
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good cause shown, the court directs the entire payment to be made 182
in cash, the purchase money shall be payable one third on the day
of sale, one third in one year AFTER THE SALE, and one third in 184
two years thereafter AFTER THE SALE, with interest. 185
Sec. 5307.15. When the estate has been offered once and 194
not sold, alias writs for its sale may issue as often as need be. 195
The court of common pleas may order a revaluation by UP TO three 196
SUITABLE disinterested freeholders of the vicinity PERSONS and 197
direct a sale of the estate at not less than two thirds of such 198
THE revaluation, or, if deemed for the interest of the parties, 200
the court may order a sale without such A revaluation, at not 201
less than a sum it fixes.
Sec. 5307.17. (A) When a widow is entitled to dower in an 210
estate of which partition is sought, dower must be assigned her 211
therein IN THE ESTATE, except in the following cases: 212
(A)(1) When an assignment of dower already has been made; 214
(B)(2) When, by answer, she has elected to be endowed out 216
of the proceeds of a sale of the estate, and the COMMISSIONER OR 217
commissioners provided for in section 5307.04 of the Revised Code 218
do not make partition, but return a valuation of it; 219
(C) (3) When the right of dower extends only to an 221
undivided interest in the estate. 222
(B) In the latter case CASES IN WHICH THE RIGHT OF DOWER 224
EXTENDS ONLY TO AN UNDIVIDED INTEREST IN THE ESTATE, and in cases 225
in which an undivided interest is subject to a life estate, and 227
the tenant for life has not, by answer, elected to receive the 228
value of his THE TENANT FOR LIFE'S estate out of the proceeds of 230
a sale of such interest, if an appraisement of the estate is to 231
be returned, the COMMISSIONER OR commissioners may assign the 232
dower, or set off the life estate, or, if they THE COMMISSIONER 234
OR COMMISSIONERS find it for the interest of the parties to do 235
so, they THE COMMISSIONER OR COMMISSIONERS may appraise the whole 236
interest, and the widow and the tenant for life shall receive the 237
value of their interests out of the proceeds of a sale of it. 238
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Sec. 5307.18. The COMMISSIONER OR commissioners provided 247
for in section 5307.04 of the Revised Code shall set off to a 248
widow her dower in the estate under section 5307.17 of the 249
Revised Code. In the performance of that duty they, THE 250
COMMISSIONER OR COMMISSIONERS shall be governed by, and the 251
proceedings shall conform to, sections 5305.01 to 5305.22, 252
inclusive, of the Revised Code.
Section 2. That existing sections 5307.04, 5307.05, 254
5307.06, 5307.07, 5307.08, 5307.09, 5307.12, 5307.15, 5307.17, 255
and 5307.18 of the Revised Code are hereby repealed. 256