Judgment upon the report.

titled to the reversion, remainder, or the inheritance of such property, or any part thereof, after the termination 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.

Second. On all persons interested in the property, who may be unknown, to whom notice shall have been given of the action by publication.

Third. On all persons claiming from such parties or persons, or either of them, and to that end the action shall be deemed, and is hereby declared, to be a proceeding in rem.

A copy of the report of the referee, as confirmed, together with a copy of the final judgment therein rendered, duly certified, may be filed in the office of the county recorder of the county or counties in which the land is situated, whose duty it shall be to record the same, which filing and recording shall have the same force and effect as the filing and recording of a deed of convey

ance.

Fourth. On all persons who have, or claim to have, conveyances to, or leins upon, or any interest in, the property, when such conveyances, liens, or interest did not appear of record at the time of the commencement of the proceedings for partition.

SEC. 379. But such judgment and partition shall not Not to affect affect tenants for years, less than ten, to the whole of the property which is the subject of the partition.

tenants for

years.

SEC. 380. The expenses of the referees, including those of a surveyor and his assistant or assistants, when employed, shall be ascertained and allowed by the court, Expenses ap- and the amount thereof, together with the fees allowed by the court, in its discretion, to the referees, shall be apportioned among the different parties to the action equitably.

portioned.

SEC. 381. 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 shall be first charged with its just proportion of the costs of the partition in preference to such lien.

Estate for life

SEC. 382. When a part of the property only is ordered to be sold, if there be an estate for life or for years in an undivided share of the whole property, such or years set estate may be set off in any part of the property not ordered to be sold.

SEC. 383. The proceeds of the sale of the incumbered property shall be applied, under the direction of the court, as follows:

First. To pay its just proportion of the general costs of the action.

Second. To pay the costs of the reference.

off.

of

Proceeds sale of incumbered

plied.

Third. To satisfy and cancel of record the several property apliens in their order of priority, by payment of the sums due and to become due; the amount due to be verified by affidavit at the time of payment.

Fourth. The residue among the owners of the property sold, according to the respective shares therein.

Lien-holder

having other may be rehaust them.

securities

quired to ex

SEC. 384. 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 securities to be exhausted before a 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. SEC. 385. The proceeds of sale and the securities taken by the referees, or any part thereof, shall be distributed by them to the persons entitled thereto whenever the court so directs; but in case no direction be of proceeds of given, all such proceeds and securities shall be paid into court or deposited therein, or as directed by the court.

SEC. 386. When the proceeds of sales of any shares or parcels 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

Distribution

sale.

Cause may be distribution

continued for

of proceeds.

Notice and sales under

determination of their respective claims thereto, which shall be ascertained and adjudged by the court. Further testimony may be taken in court or by a referee, at 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.

SEC. 387. All sales of real property made by referees under this chapter shall be made by public auction to the highest bidder, upon notice in the manner required The notice

this chapter. for the sale of real property on execution.

shall 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 shall be stated in the notice.

SEC. 388. The court shall, in the order for sale, direct the terms of credit which may be allowed for the purchase money of any portion of the premises of which it may direct a sale on credit, and for that portion of which the purchase money is required, by the provisions hereinafter contained, to be invested for the benefit of unknown owners, infants, or parties out of the territory.

SEC. 389. The referees may take separate mortgages and other securities for the whole or convenient portions of the purchase money of 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 an infant in the name of the guardian of such infant; and for other shares in the name of the clerk of the county and his successors in office.

SEC. 390. The person entitled to a tenancy for life or years, whose estate shall have been sold, shall be 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 the court. Upon the filing of such consent the clerk shall enter the same in the minutes of the court.

SEC. 391. If such consent be not given, filed, and entered, as provided in the last section, at or before a judgment of sale is rendered, the court shall ascertain and determine what proportion of the proceeds of the Court may fix sale, after deducting expenses, will be a just and reasonble sum to be allowed on account of such estate, and shall order the same to be paid to such party or deposited in court for him, as the case may require.

SEC. 392. If the persons entitled to such estate for life or years be unknown, the court shall provide for the protection of their rights in the same manner, as far as may be, as if they were known and had appeared.

SEC. 393. In all cases of sales, when it appears that any person has a vested or contingent future right or estate in any of the property sold, the court shall ascertain and settle the proportional value of such contingent or vested right or estate, and shall 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 parties.

tate of tenant for life or years.

It tenant for be unknown,

life or years

court to protect such interests.

Contingent

interests and to be settled.

vested rights

Terms of sale

made known.

How

premi

SEC. 394. In all cases of sales of property the terms shall be made known at the time; and if the premises consist of distinct farms or lots they shall be sold separately. ses sold. SEC. 395. Neither of the referees, nor any person for the benefit of either of them, shall be interested in any purchase; nor shall a guardian of an infant party be interested in the purchase of any real property, being the subject of the actions, except for the benefit of the infant. All sales contrary to the provisions of this see

tion shall be void.

Referees and guardian not

to purchase.

Report of sale

SEC. 396. After completing the sale of the property, or any part thereof, ordered to be sold, the referee shall report the same to the court, with a description of the different parcels of land sold to each purchaser, the name of the purchaser, the price paid or secured, the by referees. terms and condition of the sale, and the securities, if any, taken. The report shall be filed in the office of the clerk of the county where the property is situated.

Writs of scire

facias and quo

abolished.

CHAPTER V.-Actions for the Usurpation of an Office

or Franchise.

SEC. 397. The writ of scire facias, the writ of quo warranto warranto, and proceedings by information in the nature of quo warranto, are abolished. The remedies obtainable in these forms may hereafter be obtained by civil actions under the provisions of this chapter.

Same reme

dies by civil

action under

this chapter.

SEC. 398. An action may be brought by the district attorney, in the name of the people of this territory, upon his own information, or upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within his district, in the territory; and it shall be the duty of the district attorney to bring the action whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor ; and in case such district attorney shall neglect or refuse to bring such action, upon the complaint of a private party, such action may be brought by such private party upon his own relation, in the name of the people of the territory.

SEC. 399. Whenever such action is brought, the district attorney or relator, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightly entitled to the office, with a statement of his rights thereto; and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order may be granted by a judge of the supreme court, or a district judge, for the arrest of such defendant and holding him to bail; and thereupon he may be arrested and held to bail, in the same manner, and with the same effect, and subject to the same rights and liabilities, as in other civil actions where the defendant is subject to arrest.