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Sec. 91. INFANTS AND PERSONS NON COMPOS MENTIS. If any infant or person non compos mentis be entitled to any real or personal estate in the District which shall be liable to any mortgage, trust, or lien, or in any way charged with the payment of money, the court shall have the same power to decree in such case as if the infant were of full age or such person non compos mentis were of sound mind.

Sec. 92. Where an infant or person non compos mentis is entitled to any real or personal estate in the District bound by any executory contract entered into by the person or persons from whom said infant or person non compos mentis has derived title, or where an infant or person non compos mentis claims any right or interest in such property under and in virtue of any such contract, the court in either case shall have the same power to decree the execution of such contract or to pass any just and proper decree that the court would have if the parties were of full age and sound mind.

Secs. 138, 162.

Secs: 88, 20, 218;6 D.C. App.,

1 D. C. App.,

484; 5 D. C. App., D. C.

C. App., 345;

539; 26 D.C.App.,

597; 28 L. R., 335;

Sec. 93. PARTITION.-The court may decree a partition of any lands, tenements, or hereditaments on the bill or petition of any tenant in common, claiming by descent 357; 11 or purchase, or of any joint tenant or coparcener [who App. 116; 15, 19 was such at the date of this code]; or if it appear that D. C. App., 259, said lands, tenements, or hereditaments can not be di- 569; 29 D. C.App., vided without loss or injury to the parties interested, the 434:30 D. CAPP.: court may decree a sale thereof and a division of the 5 D. C. App., 183. money arising from such sale among the parties, according to their respective rights; and this section shall apply to cases where all the parties are of full age, to cases where all the parties are infants, to cases where some of the parties are of full age and some infants, to cases where some or all of the parties are non compos mentis, and to cases where all or any of the parties are nonresidents; and any party, whether of full age, infant, or non compos mentis, may file a bill under this section, an infant by his guardian or prochein ami and a person non compos mentis by his committee; and if any contract has been made for the sale of the lands, tenements, or hereditaments by any person or persons interested therein jointly or in common with any infant, idiot, or person non compos mentis, for and in behalf of all the persons so interested, which the court, upon a hearing and examination of all the circumstances, shall consider to be for the interest and advantage both of such infant, idiot, or person non compos mentis and of the other person or persons interested therein to be confirmed, the court may confirm such contract and order a deed to be executed according to the same; and all sales and deeds made in pursuance of such order shall be sufficient in law to transfer the estate and interest of such infant, idiot, or person non compos mentis in such lands, tenements, or hereditaments: Provided, That in every case of partition any tenant in common who may have received the rents and profits

Secs. 325, 326 (see act 1785,

Md. Code, 16,

of the property to his own use may be required to account to his cotenants for their respective shares of said rents and profits, and any amounts found to be due on said accounting may be charged against the share of the party owing the same in the property, or its proceeds in case of sale. (32 Stat., Part I, p. 523.)



[That if the parties entitled as heirs at law to the real estate of an intestate can not agree upon a partition thereof, or any of said parties be a minor, or the courts shall be of opinion that said estate can not be divided without loss or injury to the parties interested, before any sale shall be made thereof, the oldest son, child, or person entitled, if of age, shall have the election to take the whole estate and pay to the others their just proportions of the value in money; and if the oldest child or person entitled refuses to take the estate and pay to the others money for their proportions, then the next oldest child or person entitled, being age, shall have the same election, and so on to the youngest child or person entitled; and if all refuse, then the property shall be sold as aforesaid; and in every case of partition any tenant in common who may have received the rents and profits of the property to his own use or may have had the exclusive possession and enjoyment of the property may be required to account to his cotenants for their respective shares of said rents and profits, or, as the case may be, for the value of the use and occupation of their undivided shares of the property; and any amounts found due on said accounting may be charged against the share of the party owing the same in the property or its proceeds in case of sale.] Sec. 94. TRUSTEE TO SELL. -If any person shall die chap. 72, sec. 4). having devised real estate to be sold for the payment of 2. de actie, debts or other purposes without having appointed a sec. 66; 1 Anno. trustee to sell or convey the property, or if the person so 158; 44 Md., 266; appointed shall neglect or refuse to execute the trust, or 510; 58 Md., 212; shall die before the execution of such trust, the said court Cruit v. Owen, 25 shall have authority, on the application of any person 291; 200 U.S., 130; interested, to appoint a trustee to sell and convey said property and apply the proceeds of sale to the purposes intended. And in all cases where a trustee shall be appointed by last will and testament to execute any trust, and any person interested in the execution of such trust shall make it appear that it is necessary for the safety of those interested therein that the trustee should give bond and security for the due execution of the trust, the said court may order and direct that such bond be given by the trustee by a day named, and on failure of the trustee to give such bond, with security to be approved by the court as directed, the court may displace such trustee and appoint another in his stead, who shall give such bond; and such bond shall be given to the United States and may be sued on for the use of any person interested.

Code, sec. 79, p.

73 Md.,245; 30 Md.,

D. C. App., 514,

26 D. C. App., 209.

Secs. 534, 535, 539, 544; Dodge v.

Sec. 95. MORTGAGES.-In all cases of application to Trust Co., 106 U. said court to foreclose any mortgage or deed of trust, the 335; 132 U.S., 626; said court shall have authority, instead of decreeing that 10 S. C. Rep. 438; the mortgagor be foreclosed and barred from redeeming the mortgaged property, to order and decree that said property be sold and the proceeds be brought into court to be applied to the payment of the debt secured by said mortgage; and if, upon a sale of the whole mortgaged

ib. acts of Md.

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property, the net proceeds shall be insufficient to pay the mortgaged debt, the court may enter a decree in personam against the mortgagor or other party to the suit who is liable for the payment of the mortgage debt for the residue of said debt remaining unsatisfied after applying to said debt the proceeds of such sale: Provided, That the complainant would be entitled to maintain an action at law or suit in equity for said residue; which decree shall have the same effect and be enforced by execution in the same manner as a judgment at law. And in suits to enforce a vendor's lien on real estate for unpaid purchase money similar relief may be given by a decree of sale and a decree in personam for the unsatisfied residue of the purchase money due.

Sec. 96. DEBTS OF A DECEDENT.-When any person shall die leaving any real estate in possession, remainder, or reversion, and not leaving personal estate sufficient to pay his debts, the said court, on any suit instituted by any of his creditors, may decree that all the real estate left by such person, or so much thereof as may be necessary, shall be sold to pay his debts; and this section shall apply to cases where the heirs or devisees are residents or nonresidents, are of full age or infants, are of sound mind or non compos mentis, and also to cases where the deceased left no heirs or it is not known whether he left heirs or devisees or the heirs or devisees be unknown; and if there be no known heirs the attorney of the United States for the District of Columbia shall be notified of said suit and appear thereto.

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4 D. C. App., 12;


Sec. 97. SALE OF CONTINGENT INTERESTS.- -Where real, Trust v. Muse, estate is limited to one or more for life, with a contingent 29 D.C. App. 433; limitation over to such issue of one or more of the tenants sec. 969, R. S. D. for life as shall be living at the death of their parent or parents, and the deed or will does not prohibit a sale, said court may, on the application of the tenants for life, and if the court shall be of opinion that it is expedient to do so, order a sale of such estate and decree to the purchaser an absolute and complete title in fee simple.

Sec. 98. Any application for such sale shall be by bill, Sec. 970, R. S. verified by the oath of the party or parties, in which all the facts shall be distinctly set forth upon the existence of which it is claimed that such sale should be decreed, which facts shall be proved by competent testimony. All of the issue embraced in the limitation who are in existence at the time of the application shall be made parties defendant, together with all who would take the estate in case the limitation over should never vest; and minors of the age of fourteen years or more shall answer in proper person under oath, as well as by guardian ad litem, and all evidence shall be taken upon notice to the parties and the guardian ad litem.

D. C.

Sec. 99. The proceeds of sale of said real estate shall be Sec, 973, R. S. held under the control and subject to the order of the court, and shall be invested under its order and super


Sec. 162; ib., 4
D. C. App., 12; 7

D.C.App., 384; 29
D. C. App., 433.

vision upon real and personal security, and the same shall, to all intents and purposes, be deemed real estate and stand in the place of the real estate from the sale of which they are derived, and as such be subject to the limitations of the deed or will.

Sec. 100. Wherever one or more persons shall be entitled to an estate for life or years, or a base or qualified fee simple, or any other limited or conditional estate in lands, and any other person or persons shall be entitled to a remainder or remainders, vested or contingent, or an interest by way of executory devise in the same lands, on application of any of the parties in interest the court may, if all the parties in being are made parties to the proceeding, decree a sale or lease of the property, if it shall appear to be to the interest of all concerned, and shall direct the investment of the proceeds so as to inure in like manner as provided by the original grant to the use of the same. parties who would be entitled to the land sold or leased; and all such decrees, if all the persons are parties who would be entitled if the contingency had happened at the date of the decree, shall bind all persons, whether in being or not, who claim or may claim any interest in said land under any of the parties to said decree, or under any person from whom any of the parties to such decree claim, or from or under or by the original deed or will by which such particular, limited, or conditional estate, with remainders or executory devises, were created.

Sec. 101. WHEN DECREE SHALL HAVE EFFECT OF CONVEYANCE. In all cases where a decree shall be made for a Пb., Md. act. conveyance, release, or acquittance, and the party against whom such decree shall pass shall neglect or refuse to comply therewith, such decree shall stand, be considered and taken, in all courts of law and equity, to have the same operation and effect as if the conveyance, release, or acquittance had been executed conformably to such decree.

Sec. 102. PROCESS AGAINST INFANTS.—Whenever an infant is a party defendant in any suit, in equity or at law, the subpoena or summons issued in such suit shall be served upon him personally, and also the person with whom he resides if under sixteen years of age, if within the District, and said infant shall in such case be produced in court, unless, for cause shown, the court shall dispense to his appearance; and it shall be the duty of the court to appoint a suitable and competent person guardian ad litem for such infant, to appear for and defend such suit on his behalf, and whenever in the judgment of the court the interests of such infant shall require it the court shall assign a solicitor or attorney to represent such infant, whose compensation shall be paid by the plaintiff, or out of the estate of such infant, at the discretion of the court.-Act of June 30, 1902 (32 Stat., Part I, p. 523).


[Sec. 102. PROCESS AGAINST INFANTS.-Whenever an infant is a Sec. 138; 3 D. party defendant in any equity suit, the subpoena issued in said suit C.App., 260; S. C., 166 U. S., 533; 41 shall be served upon him personally, if within the District, and said L. Ed., 1105. infant shall be produced in court unless, for cause shown, the court shall dispense with his appearance, and a guardian ad litem shall be appointed to answer the bill and defend the suit for him, the said infant having the right to select his guardian ad litem if of the age of fourteen years or older.]

Sec. 103. If any person shall secrete an infant against whom process has issued, so as to prevent the service of such process, or shall prevent his appearance in court as aforesaid, such person shall be liable to attachment and punishment as for contempt; or if any infant shall secrete himself or evade the service of process, he may be proceeded against as if he were a nonresident.

Sec. 104. PERSONS NON COMPOS MENTIS.-If a person non compos mentis be a party defendant in any [equity suit, the subpoena] suit at law, or in equity, process shall be served upon him, if within the District, and upon his committee, if there be one within the District, and if there be no such committee and the court shall be satisfied as to the condition of said party, it may appoint a guardian ad litem to answer and defend for him. (32 Stat., 523.)

Sec. 138.

& McArthur, 214;

Heater Co. v.

v. Bateman, 2 D.

dan v.
38 L. R., 331;

liter, 24 D. C.

Sec. 105. NONRESIDENTS.-Publication may be substi- Sees. 110, 130, tuted for personal service of process upon any defendant D. C., sec. 787; who can not be found and who is shown by affidavit to Fraser v. Prather be a nonresident, or to have been absent from the District Backus Steam for at least six months, or against the unknown heirs or Simonds, 2 D. C. devisees of deceased persons, in suits for partition, divorce, App., 290; Plumb by attachment, foreclosure of mortgages and deeds of trust, C. App., 156: Jorthe establishment of title to real estate by possession, the n. Landrum, enforcement of mechanics' liens, and all other liens Dexter v. Lichagainst real or personal property within the District, and App., 223; Jones in all actions at law and in equity which have for their D. C. App., 114; immediate object the enforcement or establishment of 188 U. S., 510; 47 any lawful right, claim, or demand to or against any real C. App., 291: 29 D. or personal property within the jurisdiction of the court. Sec. 106. No order for the substitution of publication for personal service shall be made until a summons for the defendant shall have been issued and returned "Not to 788, R. S. D. C. be found," and the nonresidence of the defendant or his absence for at least six months shall be proved by affidavit to the satisfaction of the court.

v. Rutherford, 26

L. Ed., 567; 25 D.

C. App., 433; sec.

687, R. s. D. C. Dexter v. Lich

liter, 24 D. C. App., 222; sec.

secs. 105-111.

Sec. 107. The order of publication shall be in the fol- Conroy . Unlowing or an equilavent form:

A B, complainant,

In the supreme court of the District of Columbia.

known heirs Chas. Carroll, 34 L. R., 517; sec. 789, R. S. D. C.

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day of

A. D.


The object of this suit is to (state it briefly). On motion of the complainant, it is this that the defendant cause his appearance to be entered herein on or before the fortieth day, exclusive of Sundays and legal holidays, occurring after the day of the first publication of this order; otherwise the cause will be proceeded with as in case of default. E F, Justice.

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