8. Where the mortgagor of lands has conveyed the mortgaged premises, the wife of the purchaser is a proper party-defendant. Watt v. Alvord, 25 Ind. 533.

9. A proper party is made by alleging that he has, or claims to have, some lien upon the mortgaged property.- Martin v. Noble, 29 Ind. 216; Bowen v. Wood, 35 id. 268. 10. The guardian ad litem need not be made a party in a foreclosure against minors. Alexander v. Frary, 9 Ind. 481...

II. Mortgage notes falling due at different times are preferred in the order of priority. Harris v. Harlan, 14 Ind. 439.

12. The assignment of one of several mortgage notes carries with it the mortgage security, pro tanto.-- Hough v. Osborne, 7 Ind. 140; Garrett v. Puckett, 15 id. 485.

13. Against a vendee of lands assuming to pay a mortgage, no proof of the record thereof is necessary.- Kiger v. Franklin, 15 Ind. 102; Garrett v. Puckett, id. 485. 14. A prior mortgagee who purchases at a foreclosure sale of a prior mortgagor is subrogated to all the rights of the latter.— Benton v. Shreeve, 4 Ind. 66; Meredith v. Lackey, 16 id. I.

15. A note and mortgage made for the purpose of defrauding creditors are binding upon the parties, and are only void as to creditors.- Van Wy v. Clark, 50 Ind. 259. 16. A Board of County Commissioners has the power to either execute, receive, or assign a mortgage necessary in the transaction of their legitimate business.-- Van Arsdall v. State, 65 Ind. 176.

17. Where the suit is between the original parties thereto or their privies, the complaint need not aver a record of the mortgage.- Snyder v. Bunnell, 64 Ind. 403.

[1895 S., p. 243. Approved March 11, 1895.]

1094a. Foreclosure Defendants Service. 1. That hereafter in any suit instituted in the courts of the State of Indiana to foreclose any mortgage or other lien on real estate situate in the State of Indiana, or to subject to sale any real estate situate in the State of Indiana, and in such proceeding, or suit it shall be necessary to make parties any person, persons, corporation or copartnership as defendants in such suit or proceedings it shall be sufficient to make such person, persons, corporation or copartnership parties defendants in and by the name in which their lien or claim appears on the public records of the county wherein said suit or proceeding is commenced and service of summons or notice by publication to such person, persons, corporation, or copartnership, or on any one of the members of the copartnership or on any officer of a corporation shall be sufficient to bind said corporation or copartnership.

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

1095. Foreclosure. 712. When default is made in the performance of any condition contained in a mortgage, the mortgagee or his assigns may proceed, in the Circuit Court of the county where the land lies, to foreclose the equity of redemption contained in the mortgage. (631.)

1. A mere indemnity mortgage can not be foreclosed until the mortgagee has been injured by his suretyship.-Ellis v. Martin, 7 Ind. 652; Eagle Ins. Co. v. Lafayette Ins. Co., 9 id. 443.

2. When the lands mortgaged lie in more than one county, the Court of either of the counties has jurisdiction.-Holmes v. Taylor, 48 Ind. 169.

3. Payment of a mortgage may be proved by parol.-Mauzey v. Bowen, 8 Ind. 193.

1096. When remedy confined to mortgaged 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. (632.)

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. (633.)

1. Where suit is brought against heirs and administrators in foreclosure, there can be no judgment over against such administrators.- Newkirk v. Burson, 21 Ind. 129.

2. Nor can judgment over be rendered against the wife, when a party to the mortgage.- Kirk v. Ft. Wayne Gas Co., 13 Ind. 56.

3. Judgments in foreclosure are repleviable.- Niles v. Stillwagon, 22 Ind. 143.

4. A mortgage sale under foreclosure carries growing crops as against a tenant whose term commenced subsequent to the mortgage.-Jones v. Thomas, 8 Blackf. 428.

5 A personal judgment over in foreclosure is a lien upon all the other lands of the defendant in the county.-Fletcher v. Holmes, 25 Ind. 458.

6. A mortgage is merged in the judgment of foreclosure as a cause of action; but such judgment or merger does not abridge or extinguish the lien of the mortgage.- Evansville Gas-light Co. v. State, 73 Ind. 219.

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.

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 mortgagedebtor. (634.)

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. (635.)

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. (636.)

1. Recovery of a general judgment upon mortgage notes does not bar a foreclosure.- Jenkinson v. Ewing, 17 Ind. 505. 2 That proceedings at law have been instituted for the same debt is matter of defense.- Deam v. Morrison, to Ind. 367.

3. A party may recover judgment at law for his debt; yet if he do not sue out execution, he may also foreclose. Hensicker v. Lamborn, 13 Ind. 468; O'Leary v. Snedicker, 16 id. 404.

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 dgment, the Court shall direct at what time and upon what default any subsequent execution shall issue. (637.)

Ind. 394.

1. Upon foreclosure, rents and profits may be offered and sold.- Brownfield v. Weicht, 9 2. When a mortgage is foreclosed upon installments due and not due, there can be no judgment apon installments not due.-Skelton v. Ward, 51 Ind. 46.

Where a mortgage is made to secure a series of notes, it is competent for the mortgagor to agree pay attorney's fees, and, also, that on failure to pay one of them, all shall become due.- Jones v. Schulmeyer, 39 Ind. 119.

+ A decree of foreclosure upon one of a series of mortgage-notes is no bar to a subsequent suit upca another, when it matures.-Crouse v. Holman, 19 Ind. 30.

5. Foreclosure will lie for default in payment of interest alone,- Taber v. Cincinnati, etc., R. R. Co., 15 Ind. 459; Smart v. McKay, 16 id. 45.

6. A judgment of foreclosure for the whole amount due and to become due on several notes secured by the mortgage is not, for that reason, erroneous.-Allen v. Parker, 11 Ind. 504; Greenman v. Fox, 54 id. 267.

7. Where the mortgage is given to secure several notes in installments, it may be foreclosed for non-payment of the first due.- Hunt v. Hardin, 11 Ind. 245.

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. (638.)

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, (639.)

1. The statute requiring the Court to ascertain if the property can be sold in parcels applies only where there are installments not due.- Harris v. Makepeace, 13 Ind. 560; Smith v. Pierce, 15 id. 210. 2. On proof that a sale in parcels will be injurious to the whole premises, the Court may decree a sale in solido, although they consist of distinct tracts. Firestone v. Klick, 67 Ind. 309.

3. Any parcel held by the mortgagor should be sold before such as he has conveyed.- Hahn v. Behrman, 73 Ind. 120.

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. (640.) [1897 S., p. 271. In force March 8, 1897.]

1105a. Mortgage on household goods-Foreclosure.

I. That no mortgage of household goods which may be executed after this act shall take effect, shall authorize the mortgagee to sell such mortgaged property; and any provision in any such mortgage giving the mortgagee the power of sale, shall be void. But every sale of household goods to satisfy a mortgage thereon shall be under a judicial proceeding; in which such mortgage shall be foreclosed, in the circuit or superior court.

1105b. Possession, who may have. 2. The mortgagee of household goods shall not be entitled to the possession of the mortgaged property unless the mortgage specially provides that the mortgagee shall have possession of the mortgaged property from the time the mortgage is executed until sale, as provided in this act, and the mortgagee takes actual possession of such property when the mortgage is executed, and holds it continuously until sale. In all other cases the possession of the mortgaged property shall remain in the mortgagor until he is divested of his title by sale, as provided in section one (1) of this act. 1105c. Credits and receipts for payments. 3. It shall be the duty of the holder of any mortgage on household goods or the agent of such holder or mortgagee whose duty it is to receive money on such mortgage, when any money, check or anything taken in payment on such mortgage or interest due thereon is received by them from the mortgagor, or from any person acting for the mortgagor, to execute a receipt to the mortgagor, which receipt shall be dated and signed by the mortgagee or his agent, and shall state the date and the amount of the loan secured by such mortgage, the amount of money actually paid to the mortgagor on such loan, the amount of money charged by the mortgagee or his agent for services and expenses in connection with said loan, the rate of interest, the amount of the payment received and how applied, and the amount yet unpaid on said loan, and when it will be due. If any such holder or mortgagee or the agent of such holder or mortgagee, whose duty it is to receive such payments, shall fail to execute and deliver such receipt to the mortgagor such mortgage shall be void.

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

1106. Who may have writ. 778. Every person restrained of his liberty, under any pretense whatever, may prosecute a writ of habeas corpus, to inquire into the cause of the restraint, and shall be delivered therefrom when illegal. (714.)

1. Sec. 8, Art. 1, of the Constitution of the United States gives the power to Congress to suspend the writ.-Warren v. Paul, 22 Ind. 276.

2. 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; Öhio, etc., R. R. Co. v. Fitch, 20 id. 498.

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. (737)

1. The Supreme Court will not disturb the order of the Court below respecting the custody of children, without strong reasons in fact or law therefor.- Copeland v. State, 60 Ind. 394.

2. 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.

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. (715.)

1. Proceedings in bastardy may be inquired into and reviewed under this wnt.— Patterson v. Pressly, 70 Ind. 94; Kinder v. State, id. 284.

2. It is the indictment or affidavit charging the defendant with crime in another State which authorizes his arrest and return upon requisition as a fugitive from justice.— Tullis v. Fleming, 69 Ind. 15.

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

1109. By whom granted. 780. Writs of habeas corpus may be granted by the Circuit or Superior Courts of the county in which the person applying therefor may be restrained of his or her liberty, or by the Judges of

property after filing the complaint 'hereinafter mentioned, until the provisions of this Act are complied with, (615.)

1. The right of an occupying claimant for value of improvements is purely statutory. -Chesround v. Cunningham, 3 Blackf. 82.

2. The measure of damages is the value of the improvements at the time of the recovery by the plaintiff.-McGill v. Kennedy, 11 Ind. 20.

3. Where rents and profits accrued only by reason of improvements, the claimant can not be charged with them.-Adkins v. Hudson, 19 Ind. 392.

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. (616.)

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

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. (617.).

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. (618.)

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. (619.)

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. (620.)

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. (621.)

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. (622.)

1. Where an entry is made upon land under color of title, possession is taken in