Rule 3.402.Partition Procedure

MCR 3.402 is the working rule of a partition case. Once the court orders partition, this rule supplies the machinery: fix the interests, appoint someone neutral to draw the lines, take that person's report, and enter a judgment that binds the people the rule names.

Fixing the interests

Subrule (A) comes first. In ordering partition the court determines the rights and interests of the parties in the premises, and describes parts or shares that are to remain undivided for owners whose interests are unknown or not ascertained. Nothing is drawn on the ground until that ledger exists.

The partition commissioner

Subrule (B) requires the court to appoint a disinterested person as partition commissioner to make the partition according to the court's determination of the parties' rights and interests. If the parties agree, three commissioners may be appointed; they meet together to perform their duties and act by majority vote. The commissioner must be sworn before an officer authorized to administer oaths, promising an impartial partition of the property as directed by the court, and the oath is filed with the clerk. If the commissioner dies, resigns, or neglects to serve, the court may appoint a replacement.

The commissioner's work

Subrule (C) describes what happens next. The commissioner may apply to the court for instructions, must give notice of the meeting to consider the problems of the partition so the parties may be heard if they wish, and may take evidence at that meeting. The commissioner then divides the premises and allots the shares according to the court's judgment or a separate order, designating the shares and portions by reference to a plat or survey prepared by a land surveyor or engineer licensed by the state.

The report under subrule (C)(3) specifies the procedures followed, describes the land divided and the shares allotted to each party, and lists the commissioner's charges. The parties are not present during preparation of the report or during the deliberations of a panel of three. A copy goes to each party who has appeared.

Confirmation and the reach of the judgment

Under subrule (D) the court may modify or set aside the report and may refer the action back to the same or a newly appointed commissioner as often as necessary. On confirmation, the judgment binds the parties named in the action who hold the interests listed in subrule (D)(2)(a), their legal representatives, unknown interested persons who were given sufficient notice by publication or personally, and anyone claiming through them. Subrule (D)(3) marks the limit: the judgment does not affect persons with claims as tenants in dower or for life to the entire premises, and it does not preclude a person outside subrule (D)(2) from claiming title or controverting the title of those among whom the partition was made. An authenticated copy of the report, the confirming judgment, and incorporated surveys may be recorded with the register of deeds.

Costs and odd cases

Subrule (E) lets the court order that expenses and costs, including attorney fees, be paid by the parties according to their respective rights and equities in the premises, enforceable as a judgment. Subrule (F) handles interests that resist ordinary treatment: setting off a deceased party's interest without subdivision to those claiming under that party, separating interests once owned by known parties but now held by unknown persons, and partitioning only the ascertained interests of known parties who have appeared while the residue waits for a future division.