Any persons claiming to hold an encumbrance upon any portion of the property involved in the suit, may, in default of the owner, appear and act as his
§ 25-21,109.Default of owner; right of encumbrancers to appear.
Article 21: Special Proceedings and Actions · Not amended since original codification · Last verified July 22, 2026
In one sentenceThis section lets anyone claiming an encumbrance on part of the property in a Nebraska partition suit step in and act on the owner’s behalf if that owner defaults.
Full Text of § 25-21,109
Source
R.S.1867, Code § 842, p. 542; R.S.1913, § 8325; C.S.1922, § 9277; C.S.1929, § 20-21,109; R.S.1943, § 25-21,109.
Plain-English Summary
Not every owner shows up to defend a partition case. Section 25-21,109 gives encumbrancers, mortgage holders and others with a recorded interest in a slice of the property, a way to fill that gap. If the owner defaults, someone claiming an encumbrance on the owner’s portion may appear and act as the owner’s representative in the proceedings.
That right runs to the proceedings described in the surrounding partition sections. It gives a lienholder a stake in how the case gets handled even when the record owner has stopped participating, since the encumbrancer’s own security depends on how the property gets divided or sold.
Frequently Asked Questions
What happens if a property owner does not respond in a Nebraska partition case?
Anyone claiming an encumbrance on that owner’s portion may appear and act as the owner’s representative in the proceedings, under section 25-21,109.
Who counts as an “encumbrancer” under this section?
Anyone claiming to hold an encumbrance, such as a mortgage or other recorded interest, on any portion of the property involved in the suit.
Does the encumbrancer replace the owner as a party?
The section lets the encumbrancer act as the owner’s representative in default of the owner, rather than becoming an independent party in the owner’s place.
Why would an encumbrancer want to step into a partition case?
The encumbrancer’s security interest is tied to the property, so how the property gets divided or sold can affect the value of that security.
Does this right apply throughout the whole partition case?
It applies to the proceedings described in the sections governing partition, giving the encumbrancer a role wherever the defaulting owner would otherwise have had one.
Source & verification. Section text and the amendment-history citation are
reproduced verbatim from the Nebraska Legislature, Revisor of Statutes, enacted by the
Nebraska Legislature. Last verified July 22, 2026. ·
Official source
Also known as: encumbrancer rights partition nebraskalienholder default owner partition casemortgage holder partition proceeding nebraskarepresenting defaulting owner partition suit