Encumbrances; payment with consent of owner.
If any encumbrance is ascertained to exist, the proceeds of the sale of that portion, after the payment of costs, or so much thereof as is necessary, shall, if the owner consents, be paid over to the encumbrancer.
Source:R.S.1867, Code § 823, p. 540; R.S.1913, § 8306; C.S.1922, § 9258; C.S.1929, § 20-2190; R.S.1943, § 25-2190.
Where there is an encumbrance on a share, proceeds of sale if owner consents may be paid over to encumbrancer. Hartman v. Drake, 166 Neb. 87, 87 N.W.2d 895 (1958).
This section shows legislative intent to permit partition subject to outstanding encumbrance such as a life estate. Baskins v. Krepcik, 153 Neb. 36, 43 N.W.2d 624 (1950).
Where there is an estate for life vested in a third person in the whole of the premises of which partition is sought, a remainderman cannot maintain an action in partition over the objection of the holder of the life estate. Bartels v. Seefus, 132 Neb. 841, 273 N.W. 485 (1937).
Widow with life estate cannot compel partition, and demand the value thereof out of proceeds of partition sale, where some remaindermen object. Freeland v. Andersen, 114 Neb. 822, 211 N.W. 167 (1926).
Remaindermen cannot force partition and make life tenant take value of life estate as if it were an encumbrance. Weddingfeld v. Weddingfeld, 109 Neb. 729, 192 N.W. 227 (1923).