after the debt is barred by the statute of limitations. Bridges v. Blake, 106 Ind. 332. So long as any portion of the debt secured is unpaid, and not barred by the statute of limitations, the mortgage may be enforced. Bottles v. Miller, 112 Ind. 584; Daugherty v. Wheeler, 125 Ind. 421.

1110. (1096.) When remedy confined to mortgage property.-713. When there is no express agreement in the mortgage, nor any separate instrument given for the payment of the sum secured thereby, the remedy of the mortgagee shall be confined to the property mortgaged. If there is no agreement in writing to pay the mortgage debt, the relief is confined to the mortgaged property. Fletcher v. Holmes, 25 Ind. 458.

1111. (1097.) Personal judgment-Order of sale.-714. In rendering judgment of foreclosure, the court shall give personal judgment against any party to the suit liable upon any agreement or agreements, for the payment of any sum or sums of money secured by the mortgage, and shall order the mortgaged premises, or so much thereof as may be necessary to satisfy the mortgage and judgment and costs of the action, to be first sold, before levy of execution upon other property of the defendant. The payment of the mortgage debt, with interest and costs, at any time before sale, shall satisfy the judgment.

If the suit is against heirs and an administrator, a personal judgment over against the administrator should not be rendered. Newkirk v. Burson, 21 Ind. 129.

A personal judgment can not be rendered for the portion of the mortgage debt not due. Skelton v. Ward, 51 Ind. 46; Gall v. Fryberger, 75 Ind. 98.

If a personal judgment is rendered it is a lien upon all the lands of the defendant in the county. Fletcher v. Holmes, 25 Ind. 458.

The foreclosure of a mortgage does not extinguished its lien bat is a continuation thereof. Lapping v. Duffy, 47 Ind. 51; Evansville Co. v. State, ex rel., 73 Ind. 219. If there is no personal judgment, the decree is operative only for the purpose of selling the mortgaged property, and can not be the basis of an action. Lipperd v. Edwards, 39 Ind. 165.

Replevin bail may be entered for the stay of execution as in other judgments. Allen . Parker, 11 Ind. 504; Niles v. Stillwagon, 22 Ind. 143.

1112. (1098.) Clerk to enter satisfaction-Fees.-715. Upon the foreclosure of any mortgage in the circuit court of any county in this state, and upon the payment and satisfaction of such judgment as may be rendered in such proceedings in foreclosure, in said court, the clerk thereof shall immediately thereafter enter satisfaction of said mortgage on the records of the recorder's office of such county, if the same shall have been recorded: Provided, That the record in foreclosure and satisfaction thereof shall show that the whole debt secured by such mortgage has been paid. Such clerk shall tax a fee of forty cents in each case of foreclosure requiring satisfaction, which shall be paid as other costs in such cases; twenty cents of which he shall pay to the recorder for his services, retaining twenty cents for his own services.

In a proper case the court may order its clerk to enter satisfaction of a mortgage. Anderson Ass'n v. Thompson, 87 Ind. 278.

1113. (1099.) Order of sale.-716. When there is an express written agreement for the payment of the sum of money secured contained in the mortgage or any separate instrument, the court shall direct, in the order of sale, that the balance due on the mortgage, and costs which may remain unsatisfied after the sale of the mortgaged premises, shall be levied of any property of the mortgage-debtor.

If there is no judgment over against other property, a subsequent action will not lie for a balance due on the note secured after a sale of the mortgaged property. Marshall v. Stewart, 65 Ind. 243.

There must be a sale under the decree, and the balance due on the judgment ascertained, before other property of the mortgagor can be levied upon. Thomas v. Simmons, 103 Ind. 538.

1114. (1100.) Copy of order, how issued-Sale.-717. The copy of the order of sale and judgment shall be issued and certified by the clerk, under the seal of the court, to the sheriff, who shall thereupon proceed to sell the mortgaged premises, or so much thereof as may be necessary to satisfy the judgment, interest, and costs, as upon execution; and if any part of the judgment, interest, and costs remain unsatisfied, the sheriff shall forthwith proceed to levy the residue of the other property of the defendant.

A copy of the decree may be issued, and a sale made thereunder after the death of the defendant, without a proceeding of revival. Kellogg v. Tout, 65 Ind. 146.

It is not necessary to make a formal levy of the order of sale. Ewing v. Hatfield, 17 Ind. 513.

The lands should be offered in parcels the same as if the sale was on an ordinary execution. Piel v. Brayer, 30 Ind. 332.

If the lands are situate in different counties, each tract must be sold in the county where situate. Holmes v. Taylor, 48 Ind. 169.

The directions of the decree as to sale must be followed whether the decree is proper or not. Langsdale v. Mills, 32 Ind. 380.

The mortgaged property can not be claimed as exempt from sale under the exemption laws. Love v. Blair, 72 Ind. 281.

The title of purchasers relate back to the date of the mortgage. Bateman v. Miller, 118 Ind. 345.

1115. (1101.) When can not foreclose.-718. The plaintiff shall not proceed to foreclose his mortgage while he is prosecuting any other action for the same debt or matter which is secured by the mortgage, or while he is seeking to obtain execution of any judgment in such other action; nor shall he prosecute any other action for the same matter, while he is foreclosing his mortgage or prosecuting a judgment of foreclosure.

The taking of judgment on the debt secured does not prevent a foreclosure of the mortgage when no execution has been issued. Hensicker v. Lamborn, 13 Ind. 468; Jenkinson v. Ewing, 17 Ind. 505.

The fact that replevin bail has been entered on the judgment does not prevent a foreclosure. O'Leary v. Snediker, 16 Ind. 404.

The recovery of a personal judgment on the debt secured does not prevent the recovery of another personal judgment on foreclosure of the mortgage. Duck v. Wilson, 19 Ind. 190.

A personal judgment may be taken, and execution enforced against the other property of the debtor, without a waiver of the mortgage lien. Applegate v. Mason, 13 Ind. 75.

1116. (1102.) Installments not due-Proceedings.-719. Whenever a complaint is filed for the foreclosure of a mortgage upon which there shall be due any interest, or installment of the principal, and there are other installments not due, if the defendant pay into court the principal and interest due, with costs, at any time before final judgment, the complaint shall be dismissed; if such payment be made after final judgment, proceedings thereon shall be stayed, subject to be enforced upon a subsequent default in the payment of any installment of the principal or interest thereafter becoming due. In the final judgment, the court shall direct at what time and upon what default any subsequent execution shall issue.

No personal judgment can be rendered for that portion of the debt not due. Skelton v. Ward, 51 Ind. 46; Gall v. Fryberger, 75 Ind. 98.

When only a portion of the mortgage debt is due, the decree should specify such amount, also the amount and times when other portions will become due, and direct when execution may issue. Allen v. Parker, 11 Ind. 504; Thompson v. Davis, 29 Ind. 264; Skelton v. Ward, 51 Ind. 46.

Replevin bail may be entered on each installment as the same becomes due. Allen v. Parker, 11 Ind. 504; Niles v. Stillwagon, 22 Ind. 143.

Persons becoming bail when only a portion of the installments are due, are only liable for what is due when bail is entered. Skelton v. Ward, 51 Ind. 46.

When any amount is allowed to the defendant as damages or set-off it ought to be applied to the amount due. Brown v. Shirk, 75 Ind. 266.

1117. (1103.) Sale in parcels-Order.-720. In such cases, the court shall ascertain whether the property can be sold in parcels; and, if it can be done without injury to the interest of the parties, the court shall direct so much only of the premises to be sold as will be sufficient to pay the amount then due on the mortgage, with costs, and the judgment shall remain and be enforced upon any subsequent default, unless the amount due shall be paid before execution of the judgment is perfected.

When only a portion of the debt is due the court should inquire as to the divisibility of the premises, and if divisible, order only enough to be sold to satisfy the amount due. Wainscott v. Silvers, 13 Ind. 497; Brugh v. Darst, 16 Ind. 79; Piel v. Brayer, 30 Ind. 332; Knarr v. Canaway, 42 Ind. 260; Griffin v. Reis, 68 Ind. 9.

If the entire debt is due, the court need not inquire as to the divisibility of the property. Benton v. Wood, 17 Ind. 260; Piel v. Brayer, 30 Ind. 332; Shotts v. Boyd, 77 Ind. 223.

The court, at a term subsequent to rendering the decree, may make an order as to the divisibility of the premises. Hannah v. Dorrell, 73 Ind. 465.

If only a portion of the property is ordered sold, the order should specify such portion. Brugh v. Darst, 16 Ind. 79.

1118. (1104.) Whole to be sold, when.-721. If the mortgaged premises can not be sold in parcels, the court shall order the whole to be sold; and the proceeds of the sale shall be applied, first to the payment of the principal due, interest, and costs, and then to the residue

secured by the mortgage, and not due. And if the residue do not bear interest, a deduction shall be made therefrom, by discounting the legal interest. And in all cases where the proceeds of sale shall be more than sufficient to pay the amount due and costs, the surplus shall be paid to the mortgage-debtor, his heirs or assigns.

When it is found that the premises can not be sold in parcels without injury to the parties, the whole may be ordered sold in a body. Firestone v. Klick, 67 Ind. 309. Interest on installments not due should not be charged after the time when the proceeds of sale may be applied in payment of the same. Greenman v. Pattison, 8 Blkf.

465.

A senior mortgagee can not claim the surplus on a sale under a junior mortgage, the mortgagor being entitled to such surplus. Firestone v. State, ex rel., 100 Ind. 226. When any of the lands have been sold by the mortgagor, such lands should be ordered sold in the inverse order of their conveyance by the mortgagor, and lands held by him should be sold before the sale of those conveyed. Houston v. Houston, 67 Ind. 276; Hahn v. Behrman, 73 Ind. 120.

1119. (1105.) Plaintiff's indorsement on execution.-722. Whenever an execution shall issue upon a judgment recovered for a debt secured by mortgage of real property, the plaintiff shall indorse thereon a brief description of the mortgaged premises; and the equity of redemption shall in no case be sold on such execution.

The equity of redemption of mortgaged property can not be sold on an ordinary judgment and execution for the mortgaged debt, although the required indorsement is not made on the execution. Linville v. Bell, 47 Ind. 547; Boone v. Armstrong, 87 Ind. 168; Reynolds v. Shirk, 98 Ind. 480.

[1881 S., p. 240. In force September 19, 1881.]

1120. (1106.) Who may have writ.-778. Every person restrained of his liberty, under any pretense whatever, may procure a writ of habeas corpus, to inquire into the cause of the restraint, and shall be delivered therefrom when illegal.

Neither the president, nor congress, can suspend the issue of the writ by state courts. Griffin v. Wilcox, 21 Ind. 370.

As to the power of the state courts upon habeas corpus to inquire into the action of federal officers, see Wantlan v. White, 19 Ind. 470; Ohio, etc., R. R. Co. v. Fitch, 20 Ind. 498; Skeen v. Monkeimer, 21 Ind. 1.

Whenever an imprisonment is alleged to be illegal, the writ may be had to inquire into its legality. Ex parte Lawler, 28 Ind. 241.

Persons arrested as fugitives from justice may have the writ to test the legality of the arrest. Hartman v. Aveline, 63 Ind. 344; Tullis v. Fleming, 69 Ind. 15.

Proceedings in bastardy may be inquired into and reviewed under this writ. Patterson v. Pressley, 70 Ind. 94; Kinder v. State, 70 Ind. 284.

Proceedings in committal, for a violation of a city ordinance, are reviewable upon habeas corpus. Flora v. Sachs, 64 Ind. 155.

1121. (1107.) Parents, etc., may have writ.-802. Writs of habeas corpus shall be granted in favor of parents, guardians, masters, and husbands, and to enforce the rights and for the protection of infants and insane persons; and the proceedings shall, in all such cases, conform to the provisions of this statute.

The father of an infant child is entitled to the custody thereof unless a court, for good cause, transfers the custody to another. State, ex rel., v. Banks, 25 Ind. 495; Henson v. Walts, 40 Ind. 170; McGlennan v. Margowski, 90 Ind. 150.

The mother of an illegitimate child is entitled to its custody unless legally deprived thereof. Copeland v. State, ex rel., 60 Ind. 394.

The right of parents to the custody of their children can not be taken away except by legal proceedings, of which they have notice. Lee v. Back, 30 Ind. 148; Bryan v. Lyon, 104 Ind. 227.

The guardian of the person of an illegitimate orphan child, the mother being dead, is entitled to its custody. Johns v. Emmert, 62 Ind. 533.

In making a disposition of the custody of minor children, the interests of the children is the most important object to be considered. Garner v. Gordon, 41 Ind. 92; Jones v. Darnall, 103 Ind. 569; Bryan v. Lyon, 104 Ind. 227.

If a child is found to be illegally restrained, the restraint should be removed, but the court may or may not place it in the custody of another. State, ex rel., v. Banks, 25 Ind. 495.

Judgment awarding the custody of a child until the further order of the court is a final judgment. Henson v. Walts, 40 Ind. 170.

The court from which an appeal is taken can not change the custody of a child pending the appeal. Garner v. Gordon, 41 Ind. 92.

1122. (1108.) Complaint.-779. Application for the writ shall be made by complaint, signed and verified either by the plaintiff or by some person in his behalf, and shall specify

First. By whom the person in whose behalf the writ is applied for is restrained of his liberty; and the place where; naming all the parties if they are known, or describing them if they are not known.

Second. The cause or pretense of the restraint, according to the best of the knowledge and belief of the applicant.

Third. If the restraint be alleged, to be illegal, in what the illegality consists.

An application for a writ of habeas corpus is not a civil action. Garner v. Gordon, 41 Ind. 92; McGlennan v. Margowski, 90 Ind. 150.

In an application by a guardian for the custody of his ward, a copy of the letters of guardianship should be a part of the complaint. Gregg v. Wynn, 22 Ind. 373.