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 id. 419. But adverse title, founded upon naked possession, is limited to the lands actually occupied.- Id.

2. An intruder without color of title will not be allowed to acquire rights more easily than one who holds by adverse possession.- Ball v. Cox, 7 Ind. 453; Vanduyn v. Hepner, 45 id. 589; Green v. Green, 49 id. 417.

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. (623.)

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. (624.)

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. (625.)

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 plain

tir.

vide that the mortgagee shall have possession of the mortgaged premises, he shall not be entitled to the same.

1. Once a mortgage, always a mortgage.- Davis v. Stonestreet, 4 Ind, 101; Heath v. Williams, 30 id. 495; Church v. Cole, 36 id. 34.

2. A transfer, in writing upon the mortgage, of "the within notes and mortgage" does not convey the legal title of the notes, nor operate as an indorsement thereof.- French v. Turner, 15 Ind. 59. 3. Where the notes waive valuation laws, the mortgage also waives them.-Howe v. Dibble, 45 Ind. 120.

4. A precedent debt is a good consideration for a mortgage.-Wright v. Bundy, 11 Ind. 398. So is natural love and affection.-Mallett v. Page, 8 Ind. 364.

1087. How construed - Remedy. 2. No mortgage shall be construed as implying a covenant for the payment of the sum intended to be secured, so as to enable the mortgagee, his assignees, or representatives to maintain an action for the recovery of such sum; and where there is no express covenant contained in the mortgage for such payment, and no bond or other separate instrument to secure such payment shall have been given, the remedies of the mortgagee shall be confined to the lands mentioned in the mortgage.

“,

1. If there be no agreement, in or out of the mortgage, to pay the mortgage debt, the remedy is confined to the mortgaged property.-Fletcher v. Holmes, 25 Ind. 458.

If there is no covenant in a mortgage to pay a debt, the mortgage can not be enforced after the debt is barred. Lilly v. Dunn, 96 Fed. 220.

1088. Foreclosure before sale. 3. No mortgage of real estate, or instrument operating as or having the legal effect of a mortgage, hereafter executed, shall authorize the mortgagee to sell the mortgaged premises, but every such sale shall be made under a judicial proceeding.

1. This section forbids a power of sale in the mortgage. A later Act (June 17, 1862) authorizes a power of sale in trust mortgages.-Eaton, etc., R. R. Co. v. Hunt, 20 Ind. 457.

2. The mortgagee is not forbidden to act as agent for the sale of the lands mortgaged where the agency is not created by the mortgage.- Farley v. Eller, 29 Ind. 322.

1089. Purchase-money- Priority. 4. A mortgage granted by a purchaser to secure purchase-money shall have preference over a prior judgment against such purchaser.

1. A vendor of lands who neglects to take a mortgage to secure purchase-money until after the execution of a mortgage thereon to a third person, for value, without notice, will be postponed to the latter. Houston v. Houston, 67 Ind. 276.

1090. Entry of satisfaction-Effect. 5. Every mortgagee of lands whose mortgage has been recorded, having received full payment of the sum or sums of money, therein specified, from the mortgagor, shall, at the request of such mortgagor, enter satisfaction on the margin or other proper place in the record of such mortgage, which shall operate as a complete release and discharge thereof.

1. In equity, a mortgage will be kept alive or deemed extinguished as will best serve the purposes of justice or the just intention of the parties.-Howe v. Woodruff, 12 Ind. 214.

The holder of a mortgage is not bound to enter satisfaction thereof until it is fully paid. Storey v. Krewson, 55 Ind. 397.

An entry of satisfaction by a mortgagee after he has assigned the debt secured, is void. Reeves v. Hayes, 95 Ind. 521.

When an entry of satisfaction is procured by fraud such entry may be set aside. Reagan v. Hadley, 57 Ind. 509; Burton v. Reagan, 75 Ind. 77.

In entering satisfaction on the margin of the record it is not necessary to describe the lands. Bryant v. Richardson, 126 Ind. 145.

An entry that signifies that the mortgage has been fully paid is sufficient. Richards v. McPherson, 74 Ind. 158.

As between the parties, it may be set up that the entry of satisfaction was without consideration. Harris v. Boone, 69 Ind. 300.

Courts on decreeing that a mortgage should be entered satisfied may direct the clerk to make the entry. Anderson Association v. Thompson, 87 Ind. 278.

An entry of satisfaction made by order of court only affects the parties to the proceeding. Dixon v. Hunter, 57 Ind. 278.

The administrator of the estate of a mortgagee may enter satisfaction of a mortgage. Connecticut Co. v. Talbot, 113 Ind. 373.

If the mortgage becomes inoperative by the death of the mortgagee the mortgagor inay have the same declared satisfied. Murdock v. Cox, 118 Ind. 266.

After entry of satisfaction the record is no longer constructive notice to parties who have no notice that the entry was improperly procured. Etzler t. Evans, 61 Ind. 56; Bank v. Butterfield, 100 Ind. 229.

[1897 S., p. 140. In force March 4, 1897.]

1090a. Entry of satisfaction-Attest.

1. That on and after the taking effect of this act, each release of mortgage, lease or other instrument required by law to be recorded, written upon the margin, or upon the record of any mortgage in the several counties of the State of Indiana, by the party legally authorized to release the same, shall not be deemed a valid satisfaction of said mortgage, lease or other instrument, unless the same is attested upon the record thereof by the recorder or deputy recorder of the county in which said mortgage is recorded,

1090b Releases legalized. 2. All releases of mortgages placed upon such records by the parties legally authorized to enter satisfaction thereof, prior to the taking effect of this act, without such attestation, are hereby legalized and declared to be valid satisfactions of the several mortgages to which they relate. [1901 S., p. 419. Approved March 11, 1901.]

1090c. Release by bank official and other corporation. 1. That it shall be lawful for the president, vice-president, or cashier of any national or State bank, or the president, vice-president, general manager or secretary of any other corporation, doing business in the State of Indiana, to release upon the record, mortgages, judgments and other record liens, upon the payment of the debts secured by such liens; and such release, when made upon the margin or face of the record of such mortgage, judgment or other lien, and attested by the Recorder, Clerk or other officer having custody of the record of such lien, shall operate as a full discharge and satisfaction of such lien without being attested by the corporate seal of such bank or other corporation; and any such bank or corporation may in like manner release and discharge mortgages, judgments and other record liens by separate written instrument signed by its corporate name, by its president, vice-president, or cashier of such bank, or the president, vice-president, general manager or secretary of such other corporation, and attested by the corporate seal of said bank or corporation, which release shall be recorded by the Recorder, Clerk or other officer having the custody of the record of such lien, with a reference on the margin of the record of said lien to the place where said release is recorded, and such release when so recorded shall operate as a full discharge and satisfaction of said lien: Provided, That this act shall not affect pending litigation.

1090d. Legalizing act. 2. All the releases heretofore made by the officers mentioned in Section 1 of this act, if made upon a written instrument, attested by the corporate seal of the corporation for which such officer acted, and duly acknowledged, or if made upon the margin or face of the record of the mortgage, judgment or other lien without the corporate seal or certificate of acknowledgment of such corporation, if attested by the Recorder, Clerk or other officer having the custody of such record, shall be and are hereby declared good, valid, and legal releases.

[1901 S., p. 544. Approved March 11, 1901.]

1090e. Release of school fund mortgage. 1. That, whereas, there are a large number of school fund mortgages, which appear unsatisfied of record in the Recorder's office in the various counties of the State of Indiana, which, in fact, have been paid, the Auditor of any county in the State of Indiana, where such mortgaged lands are situated, when requested by the mortgagor or owner of the lands so mortgaged, shall make an examination of the ledgers or other records of his office, and compare such records with the receipts of moneys for school fund mortgages, in the Treasurer's office of such county, and if, upon such examination and comparison, and all facts known to him, or that come to his knowledge, he finds that such mortgage or mortgages appearing in the Recorder's office of such county as unsatisfied of record, have, in fact, been paid, such Auditor of such county, where such mortgaged lands are situated, shall make entry of satisfaction upon the margin of the record in the Recorder's office, showing the same to have been paid, for which services the mortgagor or owner of such lands shall pay to the Auditor a fee of twenty-five cents, and also pay to the Recorder his fee provided for releasing mortgages.

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

1091. Certificate of satisfaction Record. 6. Where such mortgage has been paid and satisfied by the mortgagor, he may take a certificate thereof, duly acknowledged by the mortgagee or his lawful agent, as herein required for the acknowledgment of conveyances, to entitle the same to be recorded; which certificate and acknowledgment shall be recorded by the Recorder in whose office such mortgage is recorded, with a reference to the book and page containing the record of the mortgage aforesaid; and such recorded certificate shall forever discharge and release the mortgagor from such mortgage, and forever bar all suits and actions thereon.

The release of the mortgage will not be invalid on account of a misdescription of the property if the mortgage is otherwise sufficiently identified. Bryant v. Richardson, 126 Ind. 145.

[1893 S., p. 64. In force May 18, 1893.]

1091a. Refusal to satisfy-Penalty. 1. That any person, firm, society, association or corporation being the owner or holder of any mortgage recorded in the State of Indiana or any administrator, executor, guardian, trustee or other person whose duty it shall be to release any mortgage so recorded, who shall refuse, neglect, or fail to release such mortgage of record within ten days after having been requested so to do, when the debt or obligation which mortgage was made to secure, shall have been paid, lawfully tendered, or discharged, and such person, firm, society, association, corporation, administrator, executor, guardian, trustee or other person shall have been requested in writing to release the same shall forfeit and pay to the mortgagor, or person having the right to demand the release of such mortgage, the sum of twenty-five (25) dollars, which sum may be recovered by suit in any court of competent jurisdiction, together with reasonable attorney fees incurred in the collection of said penalty. [As amended 1901 S., p. 56. Approved February 28, 1901.]

1092. Foreclosure by State. 8. Nothing in this Act shall affect any

provisions made by law in relation to the foreclosure of mortgages to the State of Indiana, so far as the same conflict with the provisions of this Act.

[1899 S., p. 191. Approved February 28, 1899.]

1092a. Assignment of mortgage. 1. That it shall be the duty of

each and every firm, person or corporation who transfers or assigns any mortgage upon real estate within the State of Indiana securing the payment of any sum or sums of money, to seil, transfer or assign the same in writing either upon the margin of the record where such mortgage is recorded or by written instrument, and cause the same to be duly acknowledged before some officer authorized to take acknowledgments of the execution of such mortgages.

1092b. Assignment recorded. 2. It shall be the duty of every per

son, firm or corporation receiving such assignment of any such mortgage when not so indorsed upon the margin of said record, where said mortgage is recorded, to cause the same to be recorded in the office of the Recorder where said mortgage is recorded or is entitled to be recorded, within forty-five (45) days from the date of receiving of such assignment.

1092c. Penalty. 3. Every person, firm or corporation who shall so

receive any such assignment of any such mortgage, who shall fail to record the same within said forty-five (45) days from the time the same is so received by him, them or it, shall forfeit and pay to the State of Indiana for the benefit of the common school fund a sum equal to 10 per cent of the face value of the indebtedness so secured by said mortgage, such sum to be recovered in an action to be brought by the Prosecuting Attorney of the county where the person so receiving said assignment shall reside, and the court trying said cause shall tax a reasonable attorney's fee of not less than twenty ($20.00) dollars for the said Prosecuting Attorney for prosecuting such action, and to be received as part of the costs of said action.

1092d. Failure to record Assignee may plead. 4. Should any person, firm or corporation hereafter bring any action in any of the courts of the State of Indiana for the foreclosure of any mortgage so assigned to it, and which assignment shall not have been recorded as required by this act, and against whom no action has been brought for the recovery of the penalty provided in section 3 of this act, the person, firm or corporation against whom such action shall be brought for the recovery of such indebtedness, shall be entitled to plead such failure to so record such assignment and be entitled to a deduction from such indebtedness of an amount equal to 10 per cent, of the par value of such indebtedness, whether such action be brought in the name of such assignee or any other person, or corporation, whatsoever.

[1877, p. 99. In force July 2, 1877.]

1093. Assignments, how made. 7. Any mortgage of record, or any part thereof, may be assigned by the mortgagee, or any assignee thereof, either by, an assignment entered on the margin of such record, signed by the person making the assignment and attested by the Recorder, or by a separate instrument executed and acknowledged before any person authorized to take acknowledgments, and recorded on such margin, or in the mortgage records of the county, in which case such assignment shall be noted in such margin by the Recorder, by reference to the book and page where such assignment is recorded. And after such entry is made of record, the mortgagor and all other persons shall be bound thereby, and the same shall be deemed a public record. And any assignee or his personal representative may enter satisfaction or release of the mortgage, or the part thereof held by him of record as aforesaid.

This section is in part superseded by sections 1092a and 1092b.

Prior to the adoption of this section parties lost none of their rights by failing to have assignments of mortgages recorded. Hasselman v. McKernan, 50 Ind. 441; Dixon v. Hunter, 57 Ind. 278; Reeves v Hayes, 95 Ind. 521.

On the adoption of this section it applied to all mortgages then of record and theretofore equitably assigned. Connecticut Co. v. Talbot, 113 Ind. 373.

If the assignee fails to have his assignment recorded persons may act on a release of the mortgage executed by the mortgagee. Connecticut Co. v. Talbot, 113 Ind. 373. The assignee of a mortgage must take notice of all mortgages of record and of the rights of the parties thereunder. Brower v. Witmeyer, 121 Ind. 83.

An indemnity mortgage may be assigned. Carper c. Munger, 62 Ind. 481.

An assignment of a debt secured by mortgage carries with it the mortgage security. Garrett . Puckett, 15 Ind. 485; Sample v. Rowe, 24 Ind. 208; Parkhurst v. Watertown Co. 107 Ind. 594.

An assignment indorsed upon a mortgage does not transfer the legal title to the notes secured. French v. Turner, 15 Ind. 59.

The assignment of a mortgage without a transfer of the debt secured conveys no right. Johnson v. Cornett, 29 Ind. 59; Hubbard v. Harrison, 38 Ind. 323.

The assignee of a mortgage given to secure commercial paper takes the mortgage like the paper, if for value, before maturity, free from all the equities which might have constituted a defense. Gabbert v. Schwartz, 69 Ind. 450.

1094. Parties-Effect of sale - Redemption. 2. And in a suit to foreclose said mortgage, it shall be sufficient to make the mortgagee, or the assignee shown by said record to hold an interest therein, defendants. And all persons failing to cause assignments to them to be made or put of record in the manner aforesaid, unless they cause themselves to be made parties pending the action, shall be bound by such decree as may be rendered, the same as if they had been parties to the suit. And any purchaser at judicial sale of the mortgaged premises, or any part thereof, under such decree, or claiming title under the same, buying without actual notice of any assignment not thus of record, or of the transfer of any note, the holder whereof was not a party to the action, shall hold the said premiɛes, so purchased, free and discharged of such lien: Provided, however, That any assignee or transferee may redeem said premises, like any other creditor, during the period of one year allowed by statute after such sales.

1. A prior mortgagee is a proper, but not a necessary, party.- Pattison v. Shaw, 6 Ind. 377; Wright v. Bundy, Ir id. 398; Proctor v. Baker, 15 id. 178; Meredith v. Lackey, 16 id. I.

2. The owners of the different parcels of the mortgaged property are necessary parties. Day v. Patterson, 18 Ind. 114.

3. A judgment-creditor junior to the mortgage is a necessary party.— Gaines v. Walker, 16 Ind. 361.

4. Where the wife joins in a mortgage, she is a necessary party.- Chambers v. Nicholson, 30 Ind. 349.

5. Where mortgaged lands are sold by the mortgagor in different parcels, and paid for by the vendees, the several parcels are made liable for the payment of the mortgage in the inverse order of their sale.- McCullum v. Turpie, 32 Ind. 146

6. The grantee having a knowledge of a valid, outstanding, unrecorded mortgage, takes the land subject thereto. Maxwell v. Brooks, 54 Ind. 98.

7. A mortgagee who takes his conveyance as an indemnity against loss as an indorser for the mortgagor, on account of present and future indorsements, is preferred as to both against subsequent incumbrancers with notice.- Brinkmeyer v. Helbling, 57 Ind. 435.