PARTITION PROCEEDINGS – AUCTION SALES BY COMMISSIONERS
The evidence you should require in order to insure a title based on a Commissioner's Deed in Partition Proceedings should be:
a. Evidence that the petitioner was a co-tenant;
b. A copy of the Court Order; and
c. Evidence from the Probate Court that notice was given as ordered and that any other terms and conditions of the Court Order with respect to the auction sale, had been followed.
M.G.L. C.241, Section 31 provides that notice for a sale at public auction shall be like the notice required for a sale of land by an administrator and that the evidence thereof may be perpetuated in like manner by returns filed with the register of the Probate Court.
M.G.L. C.202, Section 15 provides that notice of an administrator's sale at auction may be given by posting notice at least 30 days before the sale, in a public place in the town where the land lies and in two adjoining towns, or if the court granting the license so orders, by publishing the notice once in each of three successive weeks in a newspaper.
M.G.L. C.202, Section 16 provides that an affidavit of the administrator or a person on his behalf filed and recorded with a coy of the notice in the registry of probate or an affidavit made by any person and filed and recorded with a copy of the notice by permission of the court upon satisfactory evidence that the notice was given as ordered, shall be admitted as evidence of the time, place and manner in which the notice was given.
Section 31 of M.G.L. C.241 also provides for a private sale after notice and hearing or after receiving written assents of all parties in interest, if the court decides that the interests of all parties will be promoted thereby.
Provisions of Sections 12 and 16 of M.G.L. C.241, which appear to apply to partitions by division, contemplate a return of the commissioner's warrant and its acceptance or rejection by the court and an eventual decree that the partition be "firm and effectual forever".
Massachusetts Conveyances Association Title Standard No. 15 provides that a deed by a commissioner pursuant to a decree under G.L. c.241 conveys the interests of all co-tenants, whether or not named in the petition or made parties, if
1. The petitioner was a co-tenant; and
2. Notice was given as ordered by the court, provided that the order included notice by publication.