§668-11 Liens and incumbrances. Where partition is made of any property which is subject as a whole to any lien or incumbrance, the court may with the consent of the incumbrancer apportion the incumbrance against the separate portions as partitioned to the parties, or if the property is sold and the incumbrancer's claim is due and may be discharged by payment the court may discharge the same out of the proceeds. Otherwise, unless the incumbrancer consents to receive payment, the court may without disturbing or then making any adjudication as to the incumbrance, sell, subject to the incumbrance, the property affected thereby; or if any lien or incumbrance is only upon the undivided share or interest of any particular party the court may by its decree make the same a lien and charge only upon the parcel of land partitioned to the party or a charge against the party's share of the proceeds of sale thereof. In every case the property sold shall first be charged with its just proportion of the costs of the partition in preference to the lien or charge. Any party holding a lien or incumbrance and also having other securities, may in the court's discretion be required to exhaust such others before a distribution of the proceeds of sale in partition, or the court may order a just deduction to be made from the amount of the lien on the property on account of such other security. [L 1923, c 178, §11; RL 1925, §2771; RL 1935, §4750; RL 1945, §12460; RL 1955, §337-11; HRS §668-11; gen ch 1985]
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