§668-11 Liens and encumbrances. Where partition is made of any property that is subject as a whole to any lien or encumbrance, the court, with the consent of the encumbrancer, may apportion the encumbrance against the separate portions as partitioned to the parties, or if the property is sold and the encumbrancer's claim is due and may be discharged by payment, the court may discharge the claim out of the proceeds. Otherwise, unless the encumbrancer consents to receive payment, the court, without disturbing or then making any adjudication as to the encumbrance, may sell, subject to the encumbrance, the property affected thereby; or if any lien or encumbrance is only upon the undivided share or interest of any particular party, the court, by decree, may 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 encumbrance and also having other securities, in the court's discretion, may be required to exhaust the of the costs of the partition in preference to the lien or charge. Any party holding a lien or encumbrance and also having other securities, in the court's discretion, may be required to exhaust the other securities 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 the 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; am L 2017, c 12, §74]
Hawaii Legal Code