21-45-1      Property subject to partition or sale--Persons entitled to bring action.
21-45-2      Consent by conservator to partition without action.
21-45-3      Persons to whom summons directed--General direction to unknown persons.
21-45-4      Grantees and lien holders need not be joined unless claim recorded.
21-45-5      Service of summons--Description included when served by publication.
21-45-6      Interests of parties set forth in complaint--Allegations as to unknown and contingent interests.
21-45-7      Lis pendens notice required--Constructive notice.
21-45-8      Lien holders and encumbrancers of record joined by order of court--Referee to determine status of liens and encumbrances.
21-45-9      Notice to lien holders to appear before referee--Service of notice--Report of referee.
21-45-10      Validation of prior appearances by personal representatives.
21-45-11      Contents of answer.
21-45-12      Trial and determination of rights of parties in property--Rights of unknown persons.
21-45-13      Abstract of title or title insurance policy--Notice of availability--Custody and inspection--Allowance as costs.
21-45-14      Interest allowed on disbursements directed by court.
21-45-15      Order directing partition of property--Referees appointed.
21-45-16      Partition by original cotenancies--Further partition or cotenancy.
21-45-17      Partition according to respective rights of parties--Surveys and landmarks.
21-45-18      Road or street set aside before partition or sale.
21-45-19      Unequal division with compensatory payments between parties.
21-45-20      Report of referees on partition made.
21-45-21      Expenses and fees apportioned among parties.
21-45-22      Court action on referees' report--Appointment of new referees.
21-45-23      Judgment of partition--Persons bound by judgment.
21-45-24      Costs apportioned among parties by judgment--Lien and execution against property--Expense of litigation between some of parties.
21-45-25      Tenants for years not affected by judgment.
21-45-26      Judgment survives death of party.
21-45-27      Lien on undivided interest chargeable to share allocated--Partition costs preferred.
21-45-28      Sale ordered when partition not practical--Appointment of referees.
21-45-29      Estate for life or years set off in part of property not sold.
21-45-30      Sale at public auction to highest bidder--Publication of notice of sale.
21-45-31      Order for sale at site of property--Reservation of power to receive higher bid at hearing.
21-45-32      Credit terms ordered by court and announced at sale--Separate sale of distinct tracts.
21-45-33      Referees and conservators disqualified from purchasing at sale.
21-45-34      Purchase by cotenant or lien holder.
21-45-35      Payment to guardian of proceeds of sale.
21-45-36      Undertaking required of conservator receiving proceeds of sale.
21-45-37      Security taken by referees delivered to parties for agreed or adjudicated shares--Filing of agreement and receipt.
21-45-38      Separate securities taken in names of parties by referees.
21-45-39      Distribution by referees of proceeds of sale--Payment into court.
21-45-40      Clerk of courts to take and hold security and investment of proceeds.
21-45-41      Report of sale filed with clerk of courts--Contents.

21-45-1. Property subject to partition or sale--Persons entitled to bring action.

When several cotenants hold and are in possession of real property as partners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance or for life or lives or for years, an action may be brought by one or more of such persons for a partition thereof according to the respective rights of the persons interested therein and for a sale of such property or a part thereof, if it appear that a partition cannot be made without great prejudice to the owners.

Source: CCivP 1877, § 548; CL 1887, § 5362; RCCivP 1903, § 587; RC 1919, § 2798; SDC 1939 & Supp 1960, § 37.1401.

21-45-2. Consent by conservator to partition without action.

The conservator of any minor or protected person, who is interested in real property held in joint tenancy or in common or in any other manner so as to authorize his being made a party to an action for the partition thereof, may consent to partition without action and agree upon the share to be set off to such minor or protected person entitled and may execute a release on his behalf to the owners of the shares of the parts to which they may be respectively entitled upon an order of the court.

Source: SDC 1939 & Supp 1960, § 37.1402; SL 1993, ch 213, § 102.

21-45-3. Persons to whom summons directed--General direction to unknown persons.

The summons in an action brought pursuant to § 21-45-1 must be directed to all the joint tenants and tenants in common, and all persons having an interest in, or any lien of record by mortgage, judgment, or otherwise, upon the property or upon any particular portion thereof; and if it appears necessary to adjudicate the rights of unknown claimants of any kind, it may contain a general direction as follows: to all persons unknown who have or claim to have, any interest in the property described in the complaint.

Source: CCivP 1877, § 552; CL 1887, § 5366; RCCivP 1903, § 591; RC 1919, § 2802; SDC 1939 & Supp 1960, § 37.1406.

21-45-4. Grantees and lien holders need not be joined unless claim recorded.

No person having a conveyance of, or claiming a lien on the property, or some part of it, need be made a party to the action, unless such conveyance or lien appear of record.

Source: CCivP 1877, § 550; CL 1887, § 5364; RCCivP 1903, § 589; RC 1919, § 2800; SDC 1939 & Supp 1960, § 37.1404.

21-45-5. Service of summons--Description included when served by publication.

The summons must be served in the manner prescribed for service of summons in actions to determine adverse claims to real estate, and when the summons is served by publication, it must contain a description of the property.

Source: CCivP 1877, § 553; CL 1887, § 5367; RCCivP 1903, § 592; RC 1919, § 2803; SDC 1939 & Supp 1960, § 37.1407.

21-45-6. Interests of parties set forth in complaint--Allegations as to unknown and contingent interests.

The interests of all persons in the property, whether such persons be known or unknown, must be set forth in the complaint specifically and particularly, as far as known to the plaintiff; and if one or more of the parties, or the share or quantity of interest of any of the parties, be unknown to the plaintiff or be uncertain or contingent, or the ownership of the inheritance depend upon an executory devise, or the remainder of a contingent remainder, so that such parties cannot be named, that fact must be set forth in the complaint.

Source: CCivP 1877, § 549; CL 1887, § 5363; RCCivP 1903, § 588; RC 1919, § 2799; Supreme Court Rule 578, 1939; SDC 1939 & Supp 1960, § 37.1403.

21-45-7. Lis pendens notice required--Constructive notice.

Immediately after filing the complaint in the circuit court, the plaintiff must record in the office of the register of deeds of the county or of the several counties in which the property is situated, a notice of the pendency of the action, containing the names of the parties, so far as known, the object of the action, and a description of the property to be affected thereby. From the time of filing such notice for record all persons shall be deemed to have notice of the pendency of the action.

Source: CCivP 1877, § 551; CL 1887, § 5365; RCCivP 1903, § 590; RC 1919, § 2801; SDC 1939 & Supp 1960, § 37.1405.

21-45-8. Lien holders and encumbrancers of record joined by order of court--Referee to determine status of liens and encumbrances.

If it appears to the court by the certificate of the register of deeds or clerk of courts, or by the verified statement of any person who may have examined or searched the records, that there are outstanding liens or encumbrances of record upon such real property, or any part or portion thereof, which existed and were of record at the time of the commencement of the action, and the persons holding such liens are not made parties to the action, the court must either order such persons to be made parties to the action, by an amendment or supplemental complaint, or appoint a referee to ascertain whether or not such liens or encumbrances have been paid or, if not paid, what amount remains due thereon, and their order among the liens or encumbrances severally held by such persons and the parties to the action, and whether the amount remaining due thereon has been secured in any manner, and if secured, the nature and extent of the security.

Source: CCivP 1877, § 557; CL 1887, § 5371; RCCivP 1903, § 596; RC 1919, § 2807; SDC 1939 & Supp 1960, § 37.1411.

21-45-9. Notice to lien holders to appear before referee--Service of notice--Report of referee.

The plaintiff must cause a notice to be served, a reasonable time previous to the day for appearance before the referee appointed on each person having outstanding liens of record, who is not a party to the action, to appear before the referee at a specified time and place, to make proof, by his own affidavit or otherwise, of the amount due or to become due contingently or absolutely thereon. In case such person be absent, or his residence be unknown, service may be made by publication or notice to his agent, under the direction of the court, in such manner as may be proper. The report of the referee thereon must be made to the court and must be confirmed, modified, or set aside and a new reference ordered, as the justice of the case may require.

Source: CCivP 1877, § 558; CL 1887, § 5372; RCCivP 1903, § 597; RC 1919, § 2808; SDC 1939 & Supp 1960, § 37.1411.

21-45-10. Validation of prior appearances by personal representatives.

In all partition proceedings including sales conducted before July 1, 1947 in the circuit courts of this state, in which any duly appointed, qualified and acting personal representative shall have appeared as a party plaintiff, or defendant, and the heirs or devisees therein were not named as parties or served with process, the appearance of such personal representative in his official capacity shall be deemed to have been an appearance on behalf of all the heirs or devisees, and where such proceedings including sales shall have been duly confirmed, the same is hereby legalized, cured and validated and the authority of such personal representative to appear as a party plaintiff or defendant on behalf of the heirs or devisees is hereby confirmed.

Source: SL 1947, ch 166; SDC Supp 1960, § 65.0322.

21-45-11. Contents of answer.

The defendants who have been served with process in the action, or who have appeared without such service, must set forth in their answers, fully and particularly, the origin, nature, and extent of their respective interests in the property; and if such defendants claim a lien on the property by mortgage, judgment, or otherwise, they must state the original amount and date of same, and the sum remaining due thereon; also whether the same has been secured in any other way or not; and if secured, the nature and extent of such security, or they are deemed to have waived their right to such lien.

Source: CCivP 1877, § 554; CL 1887, § 5368; RCCivP 1903, § 593; RC 1919, § 2804; Supreme Court Rule 579, 1939; SDC 1939 & Supp 1960, § 37.1408.

21-45-12. Trial and determination of rights of parties in property--Rights of unknown persons.

The rights of the several parties, plaintiff as well as defendant, may be put in issue, tried, and determined in such action; and when a sale of the premises is necessary, the title must be ascertained by proof to the satisfaction of the court, before the judgment of sale can be made; and where service of the complaint has been made by publication, like proof must be required of the right of the absent or unknown parties before such judgment is rendered; except that where there are several unknown persons having an interest in the property, their rights may be considered together in the action, as not between themselves.

Source: CCivP 1877, § 555; CL 1887, § 5369; RCCivP 1903, § 594; RC 1919, § 2805; SDC 1939 & Supp 1960, § 37.1409.

21-45-13. Abstract of title or title insurance policy--Notice of availability--Custody and inspection--Allowance as costs.

If it appears to the court that it was necessary to have made an abstract of the title to the property to be partitioned, and such abstract shall have been procured by the plaintiff, or if the plaintiff shall have failed to have the same made before the commencement of the action, and any of the defendants shall have had such abstract afterwards made, the cost of the abstract, with interest thereon from the time the same is subject to the inspection of the respective parties, must be allowed and taxed. Whenever such abstract is produced by the plaintiff before the commencement of the action, he must file with his complaint a notice that an abstract of the title has been made and is subject to the inspection and use of all the parties to the action, designating therein where the abstract will be kept for inspection. But if the plaintiff shall have failed to procure such abstract before commencing the action, and any defendant shall procure the same to be made, he shall, as soon as he has directed it to be made, file a notice thereof in the action with the clerk of courts, stating who is making the same, and where it will be kept when finished. The court, or the judge thereof, may direct, from time to time, during the progress of the action, who shall have the custody of the abstract. For purposes of this section, a title insurance policy may be submitted in lieu of an abstract.

Source: CCivP 1877, § 594; CL 1887, § 5408; RCCivP 1903, § 633; RC 1919, § 2844; SDC 1939 & Supp 1960, § 37.1441; SL 2015, ch 124, § 1.

21-45-14. Interest allowed on disbursements directed by court.

Whenever, during the progress of the action for partition, any disbursements shall have been made under the direction of the court or the judge thereof, by a party thereto, interest must be allowed thereon from the time of making such disbursements.

Source: CCivP 1877, § 596; CL 1887, § 5410; RCCivP 1903, § 635; RC 1919, § 2845; SDC 1939 & Supp 1960, § 37.1440.

21-45-15. Order directing partition of property--Referees appointed.

Except as provided by § 21-45-28, upon requisite proof being made, the court must order partition of the property in kind according to the respective rights of the parties, as ascertained by the court, and must designate the portion to remain undivided for the owners whose interests remain unknown or are not ascertained. For partition in kind the court must appoint three referees unless the parties file written consent for one, in which case one only shall be appointed and may perform all of the duties required of three.

Source: CCivP 1877, §§ 559, 593; CL 1887, §§ 5373, 5407; RCCivP 1903, §§ 598, 632; RC 1919, §§ 2809, 2843; SDC 1939 & Supp 1960, § 37.1412.

21-45-16. Partition by original cotenancies--Further partition or cotenancy.

Whenever from any cause it is, in the opinion of the court, impracticable or highly inconvenient to make a complete partition, in the first instance, among all the parties in interest, the court may first ascertain and determine the shares or interest respectively held by the original cotenants, and thereupon adjudge and cause a partition to be made, as if such original cotenants were the parties and sole parties in interest, and the only parties to the action; and thereafter may proceed in like manner to adjudge and make partition separately of each share or portion so ascertained or allotted as between those claiming under the original tenant to whom the same shall have been so set apart, or may allow them to remain tenants in common thereof, as they may desire.

Source: CCivP 1877, § 556; CL 1887, § 5370; RCCivP 1903, § 595; RC 1919, § 2806; SDC 1939 & Supp 1960, § 37.1410.

21-45-17. Partition according to respective rights of parties--Surveys and landmarks.

In making the partition, the referees must divide the property and allot the several portions thereof to the respective parties, quality and quantity relatively considered, according to the respective rights of the parties as determined by the court, pursuant to the provisions of this chapter, designating the several portions by proper landmarks, and may employ a surveyor with the necessary assistants to aid them.

Source: CCivP 1877, § 560; CL 1887, § 5374; RCCivP 1903, § 599; RC 1919, § 2810; SDC 1939 & Supp 1960, § 37.1413.

21-45-18. Road or street set aside before partition or sale.

Before making partition or sale, the referees may, whenever it will be for the advantage of those interested, set apart a portion of the property for a way, road, or street, and the portion so set apart shall not be assigned to any of the parties or sold, but shall remain an open and public way, road, or street, unless the referees shall set the same apart as a private way for the use of the parties interested, or some of them, their heirs, or assigns, in which case it shall remain such private way.

Source: CCivP 1877, § 560; CL 1887, § 5374; RCCivP 1903, § 599; RC 1919, § 2810; SDC 1939 & Supp 1960, § 37.1413.

21-45-19. Unequal division with compensatory payments between parties.

When it appears that the partition cannot be made equal between the parties according to their respective rights, without prejudice to the rights and interests of some of them, and a partition be ordered, the court may adjudge compensation to be made by one party to another, on account of the inequality; but such compensation shall not be required to be made to others by owners unknown, nor by an infant, unless it appears that such infant has personal property sufficient for that purpose, and that his interest will be promoted thereby. In all cases the court has power to make compensatory adjustment between the respective parties, according to the ordinary principles of equity.

Source: CCivP 1877, § 588; CL 1887, § 5402; RCCivP 1903, § 627; RC 1919, § 2838; SDC 1939 & Supp 1960, § 37.1427.

21-45-20. Report of referees on partition made.

The referees must make a report of their proceedings, specifying therein the manner in which they executed their trust, and describing the property divided and the share allotted to each party, with a particular description of each share.

Source: CCivP 1877, § 561; CL 1887, § 5375; RCCivP 1903, § 600; RC 1919, § 2811; SDC 1939 & Supp 1960, § 37.1414.

21-45-21. Expenses and fees apportioned among parties.

The expenses of the referees, including those of a surveyor and his assistants, when employed, must be ascertained and allowed by the court, and the amount thereof, together with the fees allowed by the court, in its discretion, to the referees, must be apportioned among the different parties to the action, equitably.

Source: CCivP 1877, § 564; CL 1887, § 5378; RCCivP 1903, § 603; RC 1919, § 2814; SDC 1939 & Supp 1960, § 37.1415.

21-45-22. Court action on referees' report--Appointment of new referees.

The court may confirm, change, modify, or set aside the report, and if necessary, appoint new referees.

Source: CCivP 1877, § 562; CL 1887, § 5376; RCCivP 1903, § 601; RC 1919, § 2812; SDC 1939 & Supp 1960, § 37.1416.

21-45-23. Judgment of partition--Persons bound by judgment.

Upon the report being confirmed, judgment must be rendered that such partition be effectual forever, which judgment is binding and conclusive:

(1)    On all persons named as parties to the action, and their legal representatives, who have at the time any interest in the property divided, or any part thereof, as owners in fee, or as tenants for life or for years, or as entitled to the reversion, remainder, or the inheritance of such property, or any part thereof, after the determination of a particular estate therein, and who by any contingency may be entitled to a beneficial interest in the property, or who have an interest in any undivided share thereof as tenants for years or for life;

(2)    On all persons interested in the property, who may be unknown, to whom notice has been given in the action for partition by publication;

(3)    On all other persons claiming from such parties or persons, or either of them.

Source: CCivP 1877, § 562; CL 1887, § 5376; RCCivP 1903, § 601; RC 1919, § 2812; SDC 1939 & Supp 1960, § 37.1416.

21-45-24. Costs apportioned among parties by judgment--Lien and execution against property--Expense of litigation between some of parties.

The costs of partition, including reasonable counsel fees, expended by the plaintiff or either of the defendants, for the common benefit, fees of referees, and other disbursements, must be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the judgment. In that case they shall be a lien on the several shares, and the judgment may be enforced by execution against such shares, and against other property held by the respective parties. When, however, litigation arises between some of the parties only, the court may require the expense of such litigation to be paid by the parties thereto, or any of them.

Source: CCivP 1877, § 592; CL 1887, § 5406; RCCivP 1903, § 631; RC 1919, § 2842; SDC 1939 & Supp 1960, § 37.1442.

21-45-25. Tenants for years not affected by judgment.

The judgment of partition does not affect tenants for years less than ten, to the whole of the property which is the subject of the partition.

Source: CCivP 1877, § 563; CL 1887, § 5377; RCCivP 1903, § 602; RC 1919, § 2813; SDC 1939 & Supp 1960, § 37.1417.

21-45-26. Judgment survives death of party.

No judgment is invalidated by reason of the death of any party before final judgment or decree; but such judgment or decree is as conclusive against the heirs, legal representatives, or assigns of such decedent, as if it had been entered before his death.

Source: CCivP 1877, § 562; CL 1887, § 5376; RCCivP 1903, § 601; RC 1919, § 2812; SDC 1939 & Supp 1960, § 37.1416.

21-45-27. Lien on undivided interest chargeable to share allocated--Partition costs preferred.

When a lien is on an undivided interest or estate of any of the parties, such lien, if a partition be made, shall thenceforth be a charge only on the share assigned to such party; but such share must first be charged with its just proportion of the costs of the partition, in preference to such lien.

Source: CCivP 1877, § 565; CL 1887, § 5379; RCCivP 1903, § 604; RC 1919, § 2815; SDC 1939 & Supp 1960, § 37.1428.

21-45-28. Sale ordered when partition not practical--Appointment of referees.

If it appear to the satisfaction of the court that the property, or any part of it, is so situated that partition cannot be made without great prejudice to the owners, the court may order a sale thereof, for which purpose it may appoint one or more, but not exceeding three referees, in its discretion.

Source: CCivP 1877, §§ 559, 593; CL 1887, §§ 5373, 5407; RCCivP 1903, §§ 598, 632; RC 1919, §§ 2809, 2843; SDC 1939 & Supp 1960, § 37.1412.

21-45-29. Estate for life or years set off in part of property not sold.

When a part of the property only is ordered to be sold, if there be an estate for life or years in an undivided share of the whole property, such estate may be set off in any part of the property, not ordered to be sold.

Source: CCivP 1877, § 566; CL 1887, § 5380; RCCivP 1903, § 605; RC 1919, § 2816; SDC 1939 & Supp 1960, § 37.1429.

21-45-30. Sale at public auction to highest bidder--Publication of notice of sale.

All sales of real property, made by referees, under this chapter must be made at public auction to the highest bidder, upon notice published in the manner required for the sale of real property on execution, except that the sale may be held at the site of the property when so ordered by the court. The notice must state the terms of sale, and if the property, or any part of it, is to be sold subject to a prior estate, charge or lien, that must be stated in the notice.

Source: CCivP 1877, § 571; CL 1887, § 5385; RCCivP 1903, § 610; RC 1919, § 2821; SDC 1939, § 37.1430; SL 1943, ch 137, § 1; SL 1957, ch 193.

21-45-31. Order for sale at site of property--Reservation of power to receive higher bid at hearing.

In the order for sale the court may provide for a sale at the site of the property upon a showing that it would be advantageous to have the sale where the property is located, and shall also provide that the sale may not be confirmed should a higher and better bid, in an amount to be specified in said order, be filed in writing at the hearing upon the report of sale by the referee.

Source: SDC 1939, § 37.1430 as added by SL 1943, ch 137, § 1; SL 1957, ch 193.

21-45-32. Credit terms ordered by court and announced at sale--Separate sale of distinct tracts.

In all cases of sales of property, the terms must be made known at the time, and if the premises consist of distinct farms or lots, they must be sold separately. The court must, in the order for sale, direct the terms of credit which may be allowed for the purchase money of any portion of the real property, of which it may direct a sale on credit, and for that portion of which the purchase money is required to be invested for the benefit of unknown owners, infants, or parties out of the state.

Source: CCivP 1877, §§ 572, 578; CL 1887, §§ 5386, 5392; RCCivP 1903, §§ 611, 617; RC 1919, §§ 2822, 2828; SDC 1939, § 37.1430; SL 1943, ch 137, § 1; SL 1957, ch 193.

21-45-33. Referees and conservators disqualified from purchasing at sale.

None of the referees, nor any person for the benefit of any of them, can be interested in any purchase; nor can a conservator of a minor party be interested in the purchase of any real property being the subject of the action except for the benefit of the minor. All sales contrary to the provisions of this section are void.

Source: SDC 1939 & Supp 1960, § 37.1434; SL 1993, ch 213, § 103.

21-45-34. Purchase by cotenant or lien holder.

When a party entitled to a share of the property, or an encumbrancer entitled to have his lien paid out of the sale, becomes a purchaser, the referees may take his receipt for so much of the proceeds of the sale as belongs to him.

Source: CCivP 1877, § 582; CL 1887, § 5396; RCCivP 1903, § 621; RC 1919, § 2832; SDC 1939 & Supp 1960, § 37.1435.

21-45-35. Payment to guardian of proceeds of sale.

If the share of a minor is sold, the proceeds of the sale may be paid by the referee making the sale to his guardian, or the guardian ad litem appointed for him in the action, upon giving the security required by law, or directed by order of the court.

Source: SDC 1939 & Supp 1960, § 37.1425; SL 1993, ch 213, § 104.

21-45-36. Undertaking required of conservator receiving proceeds of sale.

The conservator of a minor or protected person whose interest in real property has been sold, may receive in behalf of such person his share of the proceeds of such real property from the referees, on executing, with sufficient sureties, an undertaking, approved by a judge of the court, that he will faithfully discharge the trust imposed in him, and will render a true and just account to the person entitled thereto, or to his legal representative.

Source: SDC 1939 & Supp 1960, § 37.1426; SL 1993, ch 213, § 105.

21-45-37. Security taken by referees delivered to parties for agreed or adjudicated shares--Filing of agreement and receipt.

When security is taken by the referees on a sale and the parties interested in such security, by an instrument in writing, under their hands, delivered to the referees, agree upon the shares and proportions to which they are respectively entitled, or when shares and proportions have been previously adjudged by the court, such securities must be taken in the names of and payable to the parties respectively entitled thereto, and must be delivered to such parties upon their receipts therefor. Such agreement and receipt must be returned and filed with the clerk.

Source: CCivP 1877, § 586; CL 1887, § 5400; RCCivP 1903, § 625; RC 1919, § 2836; SDC 1939 & Supp 1960, § 37.1433.

21-45-38. Separate securities taken in names of parties by referees.

The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase money, or such parts of the property as are directed by the court to be sold on credit, for the shares of any known owner of full age, in the name of such owner; and for the shares of a minor, in the name of the conservator of such minor; and for other shares in the name of the clerk of courts, and his successors in office.

Source: SDC 1939 & Supp 1960, § 37.1431; SL 1993, ch 213, § 106.

21-45-39. Distribution by referees of proceeds of sale--Payment into court.

The proceeds of sale and the securities taken by the referees, or any part thereof, must be distributed by them to the persons entitled thereto, wherever the court so directs. But in case no direction be given, all of such proceeds and securities must be paid into court, or deposited therein, or as directed by the court.

Source: CCivP 1877, § 569; CL 1887, § 5383; RCCivP 1903, § 608; RC 1919, § 2819; SDC 1939 & Supp 1960, § 37.1420.

21-45-40. Clerk of courts to take and hold security and investment of proceeds.

When the security of the proceeds of the sale is taken, or when an investment of any such proceeds is made, it must be done, except as herein otherwise provided, in the name of the clerk of courts of the county where the papers are filed, and his successors in office, who must hold the same for the use and benefit of the parties interested, subject to the order of the court.

Source: CCivP 1877, § 585; CL 1887, § 5399; RCCivP 1903, § 624; RC 1919, § 2835; SDC 1939 & Supp 1960, § 37.1432.

21-45-41. Report of sale filed with clerk of courts--Contents.

Within ten days after the sale of the property, or any part thereof, ordered to be sold, a report thereof, duly verified by the person making the same, shall be filed in the office of the clerk of courts of the county in which the action is pending, and shall

(1)    Refer to the order for sale of the property sold;

(2)    State when and where the property was sold, and that the sale was in all respects lawfully, honestly, and fairly conducted;

(3)    Submit proof of the publication of the notice of sale by attaching the affidavit of publication thereof;

(4)    Contain a description of the property sold;

(5)    Contain the name and address of the highest bidder for each part of the property sold and the amount of the bid;

(6)    Contain a statement and account of the sale fully itemized to show receipts therefrom and all items of costs, fees, disbursements and expenses.

Source: CCivP 1877, § 580; CL 1887, § 5394; RCCivP 1903, § 619; RC 1919, § 2830; SDC 1939, § 37.1436; SL 1947, ch 169.

21-45-42. Exceptions to return of sale--Order fixing time and place for hearing.

At any time within ten days after such return has been filed, any person interested may file exceptions thereto in writing, and no order confirming said sale shall be made until an order of the court has been made fixing a time and place for a hearing upon said report of sale and the exceptions filed thereto, and which shall be done in the same manner and upon the same notice as a hearing upon an order to show cause.

Source: SDC 1939, § 37.1436 as added by SL 1947, ch 169.

21-45-43. Higher and better bid filed before confirmation of sale.

The making of a higher and better bid subsequent to said sale shall not operate as the filing of an exception to the report of sale.

If a higher and better bid is made and filed at any time before the confirmation of sale, then the procedure shall be as prescribed by § 21-45-44.

Source: SDC 1939, § 37.1436 as added by SL 1947, ch 169.

21-45-44. Sale not confirmed if higher and better bid filed--Successive bids at hearing--Order directing conveyance to highest bidder.

Such sale shall not be confirmed as to any property for which a higher and better bid in writing, equal to or exceeding the amount specified in the order of sale, shall have been filed, prior to or at the hearing upon the return of sale, and successive bids may be received at such hearing. At the close of said bidding the court shall enter an order directing the execution and delivery of a proper conveyance to and the taking of security, if any, from the person filing or making the highest and best bid.

Source: SDC 1939, § 37.1437 as added by SL 1943, ch 137, § 2; SL 1945, ch 161, § 1; SL 1947, ch 170.

21-45-45. Confirmation ex parte when no exceptions or higher bids filed--Order for conveyance.

If no exceptions be filed to the report of sale, and such fact is made to appear by the certificate of the clerk of courts in whose office the same is filed, and no higher or better bid is filed with said clerk, which likewise is made to appear by the certificates of said clerk, the report of sale may be presented to the court for confirmation and determined ex parte. And if the court shall find that the sale has, in all respects, been made in conformity to the law and the order of the court for the sale, an order shall be made confirming the sale and authorizing and directing the execution and delivery of a proper conveyance and the taking of any security authorized and directed to be taken.

Source: CCivP 1877, § 581; CL 1887, § 5395; RCCivP 1903, § 620; RC 1919, § 2831; SDC 1939, § 37.1437; SL 1943, ch 137, § 2; SL 1945, ch 161, § 1; SL 1947, ch 170.

21-45-46. Sale valid from time of confirmation--Recording of certified copy of order.

The sale is confirmed and valid from the time of the order confirming it, and a certified copy of the order shall be recorded in the office of the register of deeds of the county wherein the property or some part thereof is situated.

Source: SDC 1939, § 37.1437 as added by SL 1947, ch 170.

21-45-47. Validation of prior proceedings in which sales confirmed--Rights barred by no action.

All sales of real property made pursuant to partition proceedings which were confirmed by an order or judgment of the court in which said sales were held prior to January 1, 1992, are hereby in all things legalized, cured, and validated as fully as if said sale and the partition proceedings in reference thereto had been made in full compliance with all existing laws.

If any person has any vested right in any real property by reason of any omission referred to in this section, and if no action or proceeding to enforce such right was commenced prior to July 1, 1993, such right shall be forever barred. No action or proceeding brought involving real property shall be of any force or effect, or maintainable in any court of this state, unless prior to July 1, 1993, there was recorded in the office of the register of deeds of the county in which the real property affected is situated, a notice of the pendency of such action, in accordance with chapter 15-10.

Source: SL 1967, ch 354; SL 1968, ch 275; SL 1972, ch 134; SL 1992, ch 307, § 8.

21-45-48. Recording of conveyance--Persons barred by recorded conveyance.

The conveyance must be recorded in the county where the premises are situated, and shall be a bar against all persons interested in the property in any way, who shall have been named as parties in the action; and against all such parties and persons as were unknown if the summons was served by publication, and against all persons claiming under them or either of them and against all persons having unrecorded deeds or liens, at the commencement of the action.

Source: CCivP 1877, § 583; CL 1887, § 5397; RCCivP 1903, § 622; RC 1919, § 2833; SDC 1939 & Supp 1960, § 37.1438.

21-45-49. Disposition of proceeds directed by order confirming sale.

The order confirming a sale may also make provision directing and authorizing the disposition to be made of the proceeds of a sale.

Source: CCivP 1877, § 581; CL 1887, § 5395; RCCivP 1903, § 620; RC 1919, § 2831; SDC 1939, § 37.1437; SL 1943, ch 137, § 2; SL 1945, ch 161, § 1; SL 1947, ch 170.

21-45-50. Continuation of action between parties when proceeds of sale paid into court--Hearing of further testimony.

When the proceeds of the sale of any share or parcel belonging to persons who are parties to the action, and who are known, are paid into court, the action may be continued as between such parties, for the determination of their respective claims thereto, which must be ascertained and adjudged by the court. Further testimony may be taken in court, or by a referee, in the discretion of the court, and the court may, if necessary, require such parties to present the facts or law in controversy by pleadings as in an original action.

Source: CCivP 1877, § 570; CL 1887, § 5384; RCCivP 1903, § 609; RC 1919, § 2820; SDC 1939 & Supp 1960, § 37.1421.

21-45-51. Application of proceeds of sale of encumbered property.

The proceeds of the sale of encumbered property must be applied under the direction of the court as follows:

(1)    To pay its just proportion of the general costs of the action;

(2)    To pay the costs of the reference;

(3)    To satisfy and cancel of record the several liens in their order or priority, by payment of the sums due and to become due; the amount due to be verified by affidavit at the time of payment;

(4)    The residue among the owners of the property sold, according to their respective shares therein.

Source: CCivP 1877, § 567; CL 1887, § 5381; RCCivP 1903, § 606; RC 1919, § 2817; SDC 1939 & Supp 1960, § 37.1418.

21-45-52. Lien holder required to resort to other secured property.

Whenever any party to an action who holds a lien upon the property or any part thereof, has other securities for the payment of the amount of such lien, the court may, in its discretion, order such security to be exhausted before distribution of the proceeds of sale, or may order a just deduction to be made from the amount of the lien on the property on account thereof.

Source: CCivP 1877, § 568; CL 1887, § 5382; RCCivP 1903, § 607; RC 1919, § 2818; SDC 1939 & Supp 1960, § 37.1419.

21-45-53. Compensation of tenant for life or years--Consent or adjudication of amount payable--Protection of unknown tenant.

The person entitled to a tenancy for life or years, whose estate has been sold, is entitled to receive such sum as may be deemed a reasonable satisfaction for such estate, and which the person so entitled may consent to accept instead thereof, by an instrument in writing, filed with the clerk of courts. Upon the filing of such consent, the clerk must enter the same in the minutes of the court. If such consent be not given, filed, and entered at or before the time a judgment of sale is rendered, the court must ascertain and determine what proportion of the proceeds of the sale, after deducting expenses, will be a just and reasonable sum to be allowed on account of such estate, and must order the same to be paid to such party, or deposited in court for him, as the case may require. If the person entitled to such estate for life or years be unknown, the court must provide for the protection of his rights in the same manner, as far as may be, as if he were known and had appeared.

Source: CCivP 1877, §§ 574 to 576; CL 1887, §§ 5388 to 5390; RCCivP 1903, §§ 613 to 615; RC 1919, §§ 2824 to 2826; SDC 1939 & Supp 1960, § 37.1422.

21-45-54. Compensation for future estate--Payment or investment of compensatory share.

In all cases of sales, where it appears that any person has a vested or contingent future right or estate in any of the property sold, the court must ascertain and settle the proportionate value of such contingent or vested right or estate, and must direct such proportion of the proceeds of the sale to be invested, secured, or paid over, in such manner as to protect the rights and interests of the parties.

Source: CCivP 1877, § 577; CL 1887, § 5391; RCCivP 1903, § 616; RC 1919, § 2827; SDC 1939 & Supp 1960, § 37.1423.

21-45-55. Investment of proceeds of sale for unknown or nonresident owner.

When there are proceeds of a sale belonging to an unknown owner, or to a person without the state who has no legal representative within it, the same must be invested in bonds of the United States for the benefit of the persons entitled thereto.

Source: CCivP 1877, § 584; CL 1887, § 5398; RCCivP 1903, § 623; RC 1919, § 2834; SDC 1939 & Supp 1960, § 37.1424.

21-45-56. Receipt and deposit by clerk of courts of securities and investments for parties--Accounting.

The clerk of courts, in whose name a security is taken, or by whom an investment is made, and his successor in office, must receive the interest and principal as it becomes due, and apply and invest the same as the court may direct; and must deposit with the county treasurer all securities taken, and keep an account in a book provided and kept for that purpose in the clerk's office, free for inspection by all persons, of investments and moneys received by him thereon and the disposition thereof.

Source: CCivP 1877, § 587; CL 1887, § 5401; RCCivP 1903, § 626; RC 1919, § 2837; SDC 1939 & Supp 1960, § 37.1439.