As Passed by the House 1
122nd General Assembly 4
Regular Session S. B. No. 88 5
1997-1998 6
SENATORS LATTA-WHITE-NEIN-McLIN- 8
REPRESENTATIVES SALERNO-GARCIA-SULZER-LEWIS-PATTON 9
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A B I L L
To amend sections 5307.04, 5307.05, 5307.06, 12
5307.07, 5307.08, 5307.09, 5307.12, 5307.15, 13
5307.17, and 5307.18 of the Revised Code to 14
change the qualifications and required number of 15
commissioners in partition actions. 16
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 18
Section 1. That sections 5307.04, 5307.05, 5307.06, 19
5307.07, 5307.08, 5307.09, 5307.12, 5307.15, 5307.17, and 5307.18 20
of the Revised Code be amended to read as follows: 21
Sec. 5307.04. If the court of common pleas finds that the 30
plaintiff in an action for partition has a legal right to any 31
part of the estate, it shall order partition thereof OF THE 32
ESTATE in favor of the plaintiff or all INTERESTED parties in 33
interest, appoint three ONE SUITABLE disinterested and judicious 35
freeholders of the vicinity PERSON to be commissioners THE 37
COMMISSIONER to make the partition, and order ISSUE a writ of 38
partition to issue. THE COURT ON ITS OWN MOTION MAY, AND UPON 39
MOTION OF A PARTY OR ANY OTHER INTERESTED PERSON SHALL, APPOINT
ONE OR TWO ADDITIONAL SUITABLE PERSONS TO BE COMMISSIONERS. IF 40
THE ESTATE TO BE PARTITIONED EXTENDS BEYOND THE COUNTY IN WHICH 41
THE ACTION IS COMMENCED, THE COURT MAY APPOINT A SEPARATE 42
COMMISSIONER OR COMMISSIONERS, NOT TO EXCEED THREE, TO MAKE THE 43
PARTITION OF THAT PORTION OF THE ESTATE LOCATED IN THE OTHER 44
COUNTY.
Sec. 5307.05. The A writ of partition ISSUED UNDER SECTION 53
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5307.04 OF THE REVISED CODE may be directed to the sheriff of any 54
of the counties in which any part of the estate lies, and shall 55
command such THE sheriff that, by the oaths of the COMMISSIONER 57
OR commissioners who are provided for in section 5307.04 of the 59
Revised Code, he, THE SHERIFF shall cause to be set off and 60
divided to the plaintiff or each INTERESTED party in interest, 62
such WHATEVER part and proportion of the estate as the court of 64
common pleas orders.
The oaths of the COMMISSIONER OR commissioners may be 66
administered by the sheriff. 67
Sec. 5307.06. In making a partition, the COMMISSIONER OR 76
commissioners provided for in section 5307.04 of the Revised Code 78
shall view and examine the estate, and, on their oaths, AND 80
having due regard to the improvements, situation, and quality of 81
the different parts, set it apart in such lots as THAT will be 82
most advantageous and equitable. 84
If the COMMISSIONER OR commissioners set such THE estate 86
apart in lots, it shall be surveyed and platted in compliance 88
with sections 711.001 to 711.15 of the Revised Code and with 89
rules adopted pursuant to those sections.
Sec. 5307.07. When partition of more than one tract is 98
demanded, the COMMISSIONER OR commissioners provided for in 100
section 5307.04 of the Revised Code shall set off to each 102
plaintiff or INTERESTED party in interests his THE PLAINTIFF'S OR 103
INTERESTED PARTY'S proper proportion in each of the several 106
tracts unless the tracts are owned by the same proprietors in
like proportion in each tract, in which case the share of any 107
proprietor, in all the tracts, may be set off to him THE 109
PROPRIETOR according to the best discretion of such THE 111
COMMISSIONER OR commissioners. If the COMMISSIONER OR 112
commissioners divide any tract, it shall be surveyed and platted 115
in compliance with sections 711.001 to 711.15 of the Revised
Code and with rules adopted pursuant to those sections. 116
Sec. 5307.08. Before a writ of partition is issued UNDER 125
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SECTION 5307.04 OF THE REVISED CODE, the person of whom partition 127
is demanded may appear in the court of common pleas in person or 128
by attorney, and consent to a partition of the estate agreeable 129
to the prayer and facts set forth in the petition, which amicable 130
partition, when made and recorded, shall be valid and binding 131
between the parties to the partition. In such cases, IN WHICH A 132
REQUESTED PARTITION IS CONSENTED TO UNDER THIS SECTION and in all 133
cases in which the lands are divided among the parties by the 135
COMMISSIONER OR commissioners provided for in section 5307.04 of 138
the Revised Code, the court shall order the sheriff to execute
and deliver a deed to each person entitled to a deed for the 139
portion set off and assigned to him THE PERSON. Land divided 140
pursuant to this section shall be surveyed and platted in 142
compliance with sections 711.001 to 711.15 of the Revised Code 143
and with rules adopted pursuant to those sections. 144
Sec. 5307.09. When the COMMISSIONER OR commissioners 153
provided for in section 5307.04 of the Revised Code are of 155
opinion that the estate cannot be divided according to the demand 157
of the writ of partition without manifest injury to its value,
they THE COMMISSIONER OR COMMISSIONERS shall return that fact to 159
the court of common pleas with a just valuation of the estate. 160
If such THE court approves the return, and IF one or more of the 161
parties elects to take the estate at such THE appraised value, it 162
shall be adjudged to them, upon their paying to the other parties 164
their proportion of its appraised value, according to their 165
respective rights, or securing it as provided in section 5307.10 166
of the Revised Code.
Sec. 5307.12. A sale of an estate under section 5307.11 of 175
the Revised Code shall be made at the door of the courthouse, 176
unless for good cause the court of common pleas directs it to be 178
made on the premises. The sale shall be conducted as upon 179
execution, except that IT is unnecessary to appraise the estate; 180
but it shall not be sold for less than two thirds of the value 181
returned by the COMMISSIONER OR commissioners provided for in 182
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section 5307.04 of the Revised Code. Unless by special order, on 184
good cause shown, the court directs the entire payment to be made 185
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 187
two years thereafter AFTER THE SALE, with interest. 188
Sec. 5307.15. When the estate has been offered once and 197
not sold, alias writs for its sale may issue as often as need be. 198
The court of common pleas may order a revaluation by UP TO three 199
SUITABLE disinterested freeholders of the vicinity PERSONS and 200
direct a sale of the estate at not less than two thirds of such 201
THE revaluation, or, if deemed for the interest of the parties, 203
the court may order a sale without such A revaluation, at not 204
less than a sum it fixes.
Sec. 5307.17. (A) When a widow is entitled to dower in an 213
estate of which partition is sought, dower must be assigned her 214
therein IN THE ESTATE, except in the following cases: 215
(A)(1) When an assignment of dower already has been made; 217
(B)(2) When, by answer, she has elected to be endowed out 219
of the proceeds of a sale of the estate, and the COMMISSIONER OR 220
commissioners provided for in section 5307.04 of the Revised Code 221
do not make partition, but return a valuation of it; 222
(C) (3) When the right of dower extends only to an 224
undivided interest in the estate. 225
(B) In the latter case CASES IN WHICH THE RIGHT OF DOWER 227
EXTENDS ONLY TO AN UNDIVIDED INTEREST IN THE ESTATE, and in cases 228
in which an undivided interest is subject to a life estate, and 230
the tenant for life has not, by answer, elected to receive the 231
value of his THE TENANT FOR LIFE'S estate out of the proceeds of 233
a sale of such interest, if an appraisement of the estate is to 234
be returned, the COMMISSIONER OR commissioners may assign the 235
dower, or set off the life estate, or, if they THE COMMISSIONER 237
OR COMMISSIONERS find it for the interest of the parties to do 238
so, they THE COMMISSIONER OR COMMISSIONERS may appraise the whole 239
interest, and the widow and the tenant for life shall receive the 240
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value of their interests out of the proceeds of a sale of it. 241
Sec. 5307.18. The COMMISSIONER OR commissioners provided 250
for in section 5307.04 of the Revised Code shall set off to a 251
widow her dower in the estate under section 5307.17 of the 252
Revised Code. In the performance of that duty they, THE 253
COMMISSIONER OR COMMISSIONERS shall be governed by, and the 254
proceedings shall conform to, sections 5305.01 to 5305.22, 255
inclusive, of the Revised Code.
Section 2. That existing sections 5307.04, 5307.05, 257
5307.06, 5307.07, 5307.08, 5307.09, 5307.12, 5307.15, 5307.17, 258
and 5307.18 of the Revised Code are hereby repealed. 259