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As Passed by the Senate
122nd General Assembly
Regular Session
1997-1998 | S. B. No. 88 |
SENATORS LATTA-WHITE-NEIN-McLIN
A BILL
To amend sections 5307.04, 5307.05, 5307.06, 5307.07, 5307.08, 5307.09,
5307.12, 5307.15, 5307.17, and 5307.18 of the Revised Code to change the
qualifications and required number of commissioners in partition actions.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 5307.04, 5307.05, 5307.06, 5307.07, 5307.08,
5307.09, 5307.12, 5307.15, 5307.17, and 5307.18 of the Revised Code be amended
to read as follows:
Sec. 5307.04. If the court of common pleas finds that the plaintiff in an
action for partition has a legal right to any part of the estate, it shall
order partition thereof OF THE ESTATE in favor of the plaintiff or all
INTERESTED parties in
interest,
appoint three ONE SUITABLE disinterested and judicious freeholders
of the vicinity PERSON to be
commissioners THE COMMISSIONER to make the partition, and order
ISSUE a writ of partition to issue. THE COURT ON ITS OWN MOTION
MAY, AND UPON MOTION OF A PARTY OR ANY OTHER INTERESTED PERSON SHALL, APPOINT
ONE OR TWO ADDITIONAL SUITABLE PERSONS TO BE COMMISSIONERS. IF THE ESTATE TO
BE PARTITIONED EXTENDS BEYOND THE COUNTY IN WHICH THE ACTION IS COMMENCED, THE
COURT MAY APPOINT A SEPARATE COMMISSIONER OR COMMISSIONERS, NOT TO EXCEED
THREE, TO MAKE THE PARTITION OF THAT PORTION OF THE ESTATE LOCATED IN THE
OTHER COUNTY.
Sec. 5307.05. The A writ of partition ISSUED UNDER SECTION
5307.04 of the Revised Code may be directed to the sheriff of any of
the counties in which any part of the estate lies, and shall command
such THE
sheriff that, by the oaths of the COMMISSIONER OR commissioners who are
provided for in section
5307.04 of the Revised Code, he, THE SHERIFF shall cause to
be set off and divided to
the
plaintiff or each INTERESTED party in interest, such WHATEVER
part and proportion of the estate as
the court of common pleas orders.
The oaths of the COMMISSIONER OR commissioners may be administered by the
sheriff.
Sec. 5307.06. In making a partition, the COMMISSIONER OR commissioners
provided for in section
5307.04 of the Revised Code shall view and examine the estate, and,
on their
oaths, AND having due regard to the improvements, situation, and
quality of the
different parts, set it apart in such lots as THAT will be most
advantageous and
equitable.
If the COMMISSIONER OR commissioners set such THE estate apart in lots,
it shall be surveyed and
platted in compliance with sections 711.001 to 711.15 of the Revised Code and
with rules adopted pursuant to those sections.
Sec. 5307.07. When partition of more than one tract is demanded, the
COMMISSIONER OR
commissioners provided for in section 5307.04 of the Revised Code shall
set off
to each plaintiff or INTERESTED party in interests his THE
PLAINTIFF'S OR INTERESTED PARTY'S proper
proportion in each of
the
several tracts unless the tracts are owned by the same proprietors in like
proportion in each tract, in which case the share of any proprietor, in all
the
tracts, may be set off to him THE PROPRIETOR according to the
best discretion of such
THE COMMISSIONER OR
commissioners. If the COMMISSIONER OR commissioners divide any tract, it
shall be surveyed
and
platted in compliance with sections 711.001 to 711.15 of the Revised Code and
with rules adopted pursuant to those sections.
Sec. 5307.08. Before a writ of partition is issued UNDER SECTION
5307.04 of the Revised Code, the
person of whom partition is demanded may appear in the court of
common pleas in person or by attorney, and consent to a partition
of the estate agreeable to the prayer and facts set forth in the
petition, which amicable partition, when made and recorded, shall
be valid and binding between the parties to the partition. In
such cases, IN WHICH A REQUESTED PARTITION IS CONSENTED TO
UNDER THIS SECTION and in all cases in which the lands are divided
among
the parties by the COMMISSIONER OR commissioners provided for in
section
5307.04
of the Revised Code, the court shall order the sheriff to execute
and deliver a deed to each person entitled to a deed for the
portion set off and assigned to him THE PERSON. Land divided
pursuant to
this section shall be surveyed and platted in compliance with
sections 711.001 to 711.15 of the Revised Code and with rules
adopted pursuant to those sections.
Sec. 5307.09. When the COMMISSIONER OR commissioners provided for in
section 5307.04 of the
Revised Code are of opinion that the estate cannot be divided according to
the
demand of the writ of partition without manifest injury to its value,
they THE COMMISSIONER OR COMMISSIONERS
shall return that fact to the court of common pleas with a just valuation of
the estate. If such THE court approves the return, and IF one
or more of the parties
elects to take the estate at such THE appraised value, it shall be
adjudged to
them, upon their paying to the other parties their proportion of its appraised
value, according to their respective rights, or securing it as provided in
section 5307.10 of the Revised Code.
Sec. 5307.12. A sale of an estate under section 5307.11 of the Revised Code
shall be made at the door of the courthouse, unless for good cause the court
of
common pleas directs it to be made on the premises. The sale shall be
conducted as upon execution, except that IT is unnecessary to appraise the
estate;
but it shall not be sold for less than two thirds of the value returned by the
COMMISSIONER OR commissioners provided for in section 5307.04 of the
Revised Code. Unless by
special order, on good cause shown, the court directs the entire payment to be
made 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 two years
thereafter AFTER THE SALE, with interest.
Sec. 5307.15. When the estate has been offered once and not sold, alias writs
for its sale may issue as often as need be. The court of common pleas may
order a revaluation by UP TO three SUITABLE disinterested freeholders of
the vicinity PERSONS and
direct a sale of the estate at not less than two thirds of such THE
revaluation,
or, if deemed for the interest of the parties, the court may order a sale
without such A revaluation, at not less than a sum it fixes.
Sec. 5307.17. (A) When a widow is entitled to dower in an
estate of which partition is sought, dower must be assigned her
therein IN THE ESTATE, except in the following cases:
(A)(1) When an assignment of dower already has been made;
(B)(2) When, by answer, she has elected to be endowed out of
the proceeds of a sale of the estate, and the COMMISSIONER OR commissioners
provided for in section 5307.04 of the Revised Code do not make
partition, but return a valuation of it;
(C) (3) When the right of dower extends only to an undivided
interest in the estate.
(B) In the latter case CASES IN WHICH THE RIGHT OF DOWER
EXTENDS ONLY TO AN UNDIVIDED INTEREST IN THE ESTATE, and in cases in which
an undivided
interest is subject to a life estate, and the tenant for life has
not, by answer, elected to receive the value of his THE TENANT FOR
LIFE'S estate out of
the proceeds of a sale of such interest, if an appraisement of
the estate is to be returned, the COMMISSIONER OR commissioners may
assign the
dower, or set off the life estate, or, if they THE
COMMISSIONER OR COMMISSIONERS find it for the
interest of the parties to do so, they THE COMMISSIONER OR
COMMISSIONERS may appraise the whole
interest, and the widow and the tenant for life shall receive the
value of their interests out of the proceeds of a sale of it.
Sec. 5307.18. The COMMISSIONER OR commissioners provided for in section
5307.04 of the Revised Code shall set off to a widow her dower in the
estate under section 5307.17 of the Revised Code. In the performance of that
duty they, THE COMMISSIONER OR COMMISSIONERS shall be
governed by, and the proceedings shall conform
to, sections 5305.01 to 5305.22, inclusive, of the Revised Code.
Section 2. That existing sections 5307.04, 5307.05, 5307.06, 5307.07, 5307.08,
5307.09, 5307.12, 5307.15, 5307.17, and 5307.18 of the Revised Code are hereby
repealed.
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