der allowing the party applying therefor to enter upon the property in controversy, and make survey and measurement thereof for the purposes of the action. 1081. (1069.) Order and service.-687. The order must describe the property, and a copy thereof must be served upon the owner or person having the occupancy and control of the land. 1082. (1070.) Action to quiet title.-690. An action may be brought by any person, either in or out of possession, or by one having an interest in remainder or reversion, against another who claims title to or interest in real property adverse to him, although the defendant may not be in possession thereof, for the purpose of determining and quieting the question of title. A complaint under this section is sufficient if it shows the plaintiff to be the owner of the lands, and that the defendant is asserting an unfounded claim thereto. Dumont v. Dufore, 27 Ind. 263; Gillett v. Carshaw, 50 Ind. 381; American Co. v. Gibson, 104 Ind. 336; Johnson v. Taylor, 106 Ind. 89; Rausch v. Trustees, 107 Ind. 1. It need not be alleged what claim the defendant asserts if it is alleged that such claim is adverse to the title of the plaintiff. Marot v. Germania Ass'n, 54 Ind. 37; Rausch v. Trustees, 107 Ind. 1; Wilson v. Wilson, 124 Ind. 472. It must be alleged that the claim of the defendant is unfounded and adverse to the title of the plaintiff. Bank v. Corey, 94 Ind. 457; Conger v. Miller, 104 Ind. 592. If the facts stated show that the claim of the defendant is adverse to the title of plaintiff, it will be sufficient in this respect. Kitts v. Wilson, 106 Ind. 147; Rose v. Nees, 61 Ind. 484. If the facts stated show the defendant to have an interest in the land, the complaint will be bad. Ragsdale v. Mitchell, 97 Ind. 458; McPheeters v. Wright, 110 Ind. 519. The plaintiff need only state whether his title is legal or equitable, and if equitable may state the facts on which his title is based. Grissom v. Moore, 106 Ind. 296. When a legal title is alleged, a recovery can not be had on proof of an equitable title. 'Johnson v. Pontious, 118 Ind. 270. The description of the lands should be definite and certain. Sharpe v. Dillman, 77 Ind. 280; Ratliff v. Stretch, 117 Ind. 526. Persons in possession of lands can only maintain the action when a person out of possession is asserting a claim to the lands. Detwiler v. Schultheis, 122 Ind. 155. The action may be maintained whenever any person is asserting a claim to the lands that will cast a cloud upon the title of the owner. Walter v. Hartwig, 106 Ind. 123; Hampson v. Fall, 64 Ind. 382; Brown v. Cody, 115 Ind. 484. An action may be brought to quiet title in an easement, such as a right of way. Davidson v. Nicholson, 59 Ind. 411. Caress v. All defenses may be proven under the general denial. Graham v. Graham, 55 Ind. 23; Sharpe v. Dillman, 77 Ind. 280; O'Donahue v. Creager, 117 Ind. 372. The suit may be brought within fifteen years after the action accrues. Foster, 62 Ind. 145; Eve v. Louis, 94 Ind. 457; Detwiler v. Schultheis, 122 Ind. 155. If an action to recover possession of lands is barred by the statute of limitations, a suit to quiet title is also barred. Smith v. Bryan, 74 Ind. 515; Dumont v. Dufore, 27 Ind. 263. The parties are entitled to a trial by jury. Trittipo v. Morgan, 99 Ind. 269; Johnson v. Taylor, 106 Ind. 89. And new trials may be had without cause as in actions of ejectment. Zimmerman v. Marchland, 23 Ind. 474; Hunter v. Chrisman, 70 Ind. 439; Miller v. Bank, 99 Ind. 272; Bisel v. Tucker, 121 Ind. 249. A decree quieting title to lands prevents the parties from afterwards asserting an ad verse claim held at the time of the decree. Green v. Glynn, 71 Ind. 336; Farrar v. Clark, 97 Ind. 447; Railway Co. v. Allen, 113 Ind. 308; Davis v. Lennen, 125 Ind. 185; Satterwhite v. Sherley, 127 Ind. 59; Hawkins v. Taylor, 128 Ind. 431. 1083. (1071.) Quieting title and partition-Rules applicable.691. The rules above prescribed shall, in such cases, be observed as far they are applicable; and in partition cases, when the title to real estate is bona fide in question, upon the pleadings and evidence between the parties. All the rules applicable to actions of ejectment apply to actions to quiet title. Green ⚫. Glynn, 71 Ind. 336; Johnson v. Pontious, 118 Ind. 270. 1084. (1072.) Disclaimer-Costs: 692. If in such cases the defendant disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the defendant shall recover costs. This section only applies to defendants not in possession of the lands. Ragan v. Haynes, 10 Ind. 348. If a defendant answers disclaiming any interest in the lands, and alleges that a third person is in possession thereof he is entitled to costs. McCarnan v. Cochran, 57 Ind. 166. An answer of disclaimer is not subject to a demurrer. McAdams v. Lotton, 118 Ind. 1; Miller v. Curry, 124 Ind. 48. If a defendant in possession files a disclaimer, but refuses to yield possession without a writ, he may be taxed with all costs. McAdams v. Lotton, 118 Ind. 1. A disclaimer is only applicable in actions for partition and to quiet title. Walker v. Steele, 121 Ind. 436. The disclaimer should be filed when the party first appears to entitle him to recover costs. Kitts v. Wilson, 130 Ind. 492. [Acts 1891, p. 377. In force June 3, 1891.] 1085. Recording proceedings in recorder's office.-2. Whenever the title of any real estate is quieted, or a disputed title is settled by proceedings in court, it shall be the duty of the clerk of such court, within two years after the final hearing of such cause, to cause a certified copy of the judgment and decree of the court to be transferred and recorded in the recorder's office of the proper county; also to tax and collect, as part of the cost in the proceedings, a fee for the auditor and recorder equivalent to their fees for like services in the transfer and recording of deeds. [1881, p. 60. In force September 19, 1881.] 1086. (1073.) Real party in interest to be plaintiff.-1. Any person having a right to recover the possession of real estate, or to quiet title thereto in the name of any other person or persons, shall have a right to recover possession or quiet title in his own name; and no action shall be defeated or reversed where it might have been successfully maintained by the plaintiff, in the name of another, to inure to his benefit: Provided, That the provisions of this act shall not apply to nor affect pending actions. Prior to the adoption of this section, if lands were conveyed while in the adverse possession of a third person, a suit for possession could be brought in the name of the grantor for the use of the grantee. Steeple v. Downing, 60 Ind. 478; Burk v. Andis, 98 Ind. 59. This section validates deeds that were void on account of the lands being adversely held at the time of their execution. Peck v. Sims, 120 Ind. 345. The grantee in such deeds must bring the action to recover possession of the lands. Peck v. Sims, 120 Ind. 345. One tenant in common can not, under this section, sue to recover the interest of his co-tenant. Martin v. Neal, 125 Ind. 547. [1881 S., p. 240. In force September 19, 1881.] 1087. (1074.) Occupying claimant.-694. When an occupant of land has color of title thereto, and in good faith has made valuable improvements thereon, and is afterward, in the proper action, found not to be the rightful owner thereof, no execution shall issue to put the plaintiff in possession of the property after filing the complaint hereinafter mentioned, until the provisions of this act are complied with. The right of an occupying claimant for value of improvements is purely statutory. Chesround v. Cunningham, 3 Blkf. 82. If lands mortgaged to the state are forfeited, and are then sold by the mortgagor, and the purchaser makes improvements, he is not entitled to the value thereof as against a purchaser from the state. Vannoy v. Blessing, 36 Ind. 349. Persons who lose lands by reason of defective titles can only recover for improvements by claims made under the occupying claimant law. Westerfield v. Williams, 59 Ind. 221. 1088. (1075.) Complaint-Contents.-695. The complaint must set forth the grounds on which the defendant seeks relief, stating, among other things, as accurately as practicable, the value of the improvements on the lands as well as the value of the lands aside from the improvements. The particular kind and character of the improvements made should be stated. Wallace v. Brooker, 105 Ind. 598. 1089. (1076.) Issue-Trial-Assessment.-696. All issues joined thereon shall be tried as in other cases, and the court or jury trying the cause shall assess First. The value of all lasting improvements made, as aforesaid, on the lands in question previous to the commencement of the action for the recovery of the lands. Second. The damages, if any, which the premises may have sustained by waste or cultivation to the time of rendering judgment. Third. The fair value of the rents and profits which may have accrued, without the improvements, to the time of rendering judgment. Fourth. The value of the estate which the successful claimant has in the premises, without the improvements. Fifth. The taxes, with interest, paid by the defendant and by those under whose title he claims. The measure of damages is the value of improvements at the time when judgment was rendered determining the title to the land. McGill v. Kennedy, 11 Ind. 20. The defendant can not claim for improvements made after he knew he had no title to the land. Osborn v. Storms, 65 Ind. 321. Only bona fide occupants can claim for improvements. Bryan v. Uland, 101 Ind. 477. The defendant may be charged with rents up to the time of the trial under the occupying claimant law. Adkins v. Hudson, 19 Ind. 392. If the defendant is entitled to the improvements, he is only chargeable with the rental value without the improvements. Elliott v. Armstrong, 4 Blkf. 421; Adkins v. Hudson, 19 Ind. 392. When a claim is made for improvements, the occupant may be charged with rents for more than six years. Hyatt v. Cochran, 85 Ind. 231. 1090. (1077.) Plaintiff's election.-697. The plaintiff in the main action may thereupon pay the appraised value of the improvements, and the taxes paid, with interest, deducting the value of the rents and profits, and the damages sustained as assessed on the trial, and take the property. If the plaintiff pays the damages assessed in favor of the defendant he may then have execution for possession of the land and for the damages assessed for detention thereof. Hollingsworth v. Stumph, 131 Ind. 546. 1091. (1078.) Defendant's election.-698. Should he fail to do this, after a reasonable time, to be fixed by the court, the defendant may take the property, upon paying the appraised value of the land, aside from the improvements. 1092. (1079.) When to be tenants in common.-699. If this be not done within a reasonable time, to be fixed by the court, the parties will be held to be tenants in common of all the lands, including the improvements, each holding an interest proportionate to the value of his property, as ascertained by the appraisement above contemplated. 1093. (1080.) Color of title.-700. The purchaser in good faith at any judicial or tax sale, made by the proper person or officer, has color of title within the meaning of this act, whether such person or officer had sufficient authority to sell or not, unless the want of authority was known to the purchaser at the time of the sale; and the rights of the purchaser shall pass to his assignees or representatives. 1094. (1081.) What is color of title.-701. Any occupant of land who can show a connected title in law or equity, derived from the records of any public office, or who holds the same by purchase or descent from any person claiming title derived as aforesaid or by deed duly recorded, has color of title, within the meaning of this act. Where an entry is made upon land under color of title, possession is taken in law to the extent of the metes and bounds described in the conveyance; and this, although the deed may be a nullity. Bell v. Longworth, 6 Ind. 273; Bauman v. Grubbs, 26 Ind. 419. Invalid tax deeds constitute color of title. Wiggins v. Holley, 11 Ind. 2; Watkins . Winings, 102 Ind. 330; Sims v. Gay, 109 Ind. 501; English v. Powell, 119 Ind. 93. Deeds made under judicial proceedings give color of title though the sales are void. Sims v. Gay, 109 Ind. 501; Paxton v. Sterne, 127 Ind. 289. A quit claim deed executed by a person having no title to a person having notice of the facts does not create color of title. Wright v. Tichenor, 104 Ind. 185. 1095. (1082.) Occupant recovers for lasting improvements.—702. The occupying claimant may recover the value of lasting improvements made by the party under whom he claims, as well as those made by himself; and any person holding the premises as a purchaser, by an agreement in writing from the party having color of title, shall be entitled to this remedy. 1096. (1083.) Writ of possession.-703. The plaintiff shall be entitled to an execution for the possession of his property, in accordance with the provisions of this act, but not otherwise. 1097. (1084.) Defective sales-When no writ of possession.—704. Whenever any land sold by an executor, administrator, guardian, sheriff, or commissioner of court is afterward recovered, in the proper action, by any person originally liable, or in whose hands the land would be liable to pay the demand or judgment for which, or for whose benefit the land was sold, or any one claiming under such person, the plaintiff shall not be entitled after the filing of the complaint to a writ for the possession, without having paid the amount justly due, as determined under the provisions of the following section, within the time therein stated. See section 777. When lands are sold to pay the debts of a decedent, his heirs can not obtain the land without repaying the purchase-money received by the administrator. Walton v. Cox, 67 Ind. 164. If a sheriff's sale of land is involved, a purchaser in good faith has a lien on the land for his purchase-money. Short v. Sears, 93 Ind. 505. 1098. (1085.) Adjustment of amount due.-705. The defendants in the main action, or any of them, may file their complaint, setting forth the sale and title under it, and any other matter contemplated in this act. Proceedings shall then be had, as aforesaid, to determine the amount of purchase-money paid, with interest, the value of the lasting improvements, the damages, if any, which the premises have sustained by waste or cultivation, the value of the rents and profits, and the taxes paid. If any balance remain due from the plaintiff in the main action, the court shall fix a reasonable time within which he shall pay the same, and if it be not paid within that time, the court shall order the lands to be sold without relief from valuation or appraisement laws. In case of sale, there shall be paid the costs of the proceedings and the amount due the defendant, with interest, and the surplus, if any, shall be paid to the plaintiff. The persons in possession may file a cross-complaint and have the amount of their claims adjusted, and the court may fix a time for the payment thereof, and direct a sale of the property. Goodell v. Starr, 127 Ind. 198. SEC. ARTICLE 39.-FORECLOSURE OF MORTGAGE. 1099. Possession of premises. 1100. How construed-Remedy. 1101. Foreclosure before sale. SEC. 1102. Purchase-money-Priority. |