8. Except in cases for escheat or forfeiture, ejectment, not quo warranto, is the proper remedy where the State claims title to realty.-State v. Shields, 56 Ind. 521.

9. When a case involving title is certified for trial by a Justice to the Circuit Court, the Court has jurisdiction to hear and determine it as if originally begun above. Bibbler v. Walker, 69 Ind. 362.

1051. Landlord, when substituted-Notice. 672. Whenever it appears that the defendant is only a tenant, the landlord may be substituted, reasonable notice thereof being given. (593.)

1052. Landlord, when bound. 684. In an action against a tenant, the judgment shall be conclusive evidence against the landlord who has received notice as hereinbefore provided.

(605.)

673. When the defendant is a

1053. Service upon agent, when. non-resident, service for the property may be had upon his agent residing in the State with the like effect as though made upon the principal, or service may be had by publication, as in other cases.

(594.)

1054. Contents of complaint. 674. The plaintiff in his complaint shall state that he is entitled to the possession of the premises, particularly describing them, the interest he claims therein, and that the defendant unlawfully keeps him out of possession.

(595.)

1. The complaint must designate the premises with reasonable certainty, stating the county and State where the land lies.-Leary v-Langsdale, 35 Ind. 74; De Armond . Armstrong, 37 id. 35; Inge v. Garrett, 38 id. 96; Jolly v. Ghering, 40 id. 139.

1055. Answer in denial Effect. 675. The answer of the defendant may contain a denial of each material statement or allegation in the complaint; under which denial, the defendant shall be permitted to give in evidence every defense to the action that he may have, either legal or equitable. (596.)

1. All defenses are admissible under the general denial; but to enforce a contract for conveyance requires an affirmative paragraph of answer.-Emily v. Harding, 53 Ind. 102; Graham v. Graham, 55 id. 23; State v. Meyer, 63 id. 33.

2. In ejectment, the sustaining of a demurrer to a specific paragraph of answer is harmless, if the general denial be pleaded.-Berlin v. Oglesbee, 65 Ind. 308.

1056. Proof of defendant's possession, when needless.

676.

Where the defendant makes defense, it shall not be necessary to prove him in possession of the premises. (597-)

1. Where the defendant appears, and pleads to the action, evidence as to metes and bounds is irrelevant.-Voltz v. Newbert, 17 Ind. 187.

1057. Plaintiff must show title. 685, The plaintiff must recover on the strength of his own title. (606.)

1. An execution-defendant can not, by way of defense, prove his own title defective; but third persons may. Dorman v. Elder, 3 Blackf. 490.

2. A deed executed to the plaintiff after the commencement of suit will not avail him therein.-Inge v. Garrett, 38 Ind. 96.

3. A conveyance of lands, though made by the rightful owner, while they are in adverse possession of another under claim of ownership, is absolutely void as against such adverse holder or privies.-- Steeple v. Downing, 60 Ind. 478.

4. Real estate may be recovered upon an equitable title, when the owner of such title has thereby the right of possession.- Burt v. Bowles, 69 Ind. 1.

5. In ejectment, the plaintiff must recover on the strength of his own title.-Shipley v. Shook, 72 Ind. 511.

6. In a suit by a purchaser at Sheriff's sale against the judgment-defendant, it is sufficient to show judgment, execution, sale, and deed. Where against another than the judgment-defendant, it must also be shown that the latter had title.-Id.

7. A deed absolute on its face will be deemed a mortgage as to all having notice that such was its purpose. Tuttle v. Churchman, 74 Ind. 311.

8. Possession is usually constructive notice to all the world of the rights of the pos sessor; but there are exceptions to this rule.- Id.

1058. Use of premises-Recovery for-Limit. 677. The plaintiff can not recover for the use and occupation of the premises for more than six years next before the commencement of the action; but may recover, in the same action, for use and occupation up to the time of its termination. (598.)

1. Mesne profits may be recovered in ejectment; but damages or waste to the free. hold are not properly joined therewith. Bottorf v. Wise, 53 Ind. 32; Woodruff v. Garner, 27 id. 4. TAK,ib.

2. Mesne profits may be recovered by the plaintiff.—Woodruff v. Garner, 27 Ind. 4. 1059. When plaintiff recovers damages only. 678. If the inter est of the plaintiff expire before the time in which he could be put in possession, he shall obtain a judgment for damages only. (599.)

1060. Recovery, separate or joint, according to rights. 679. Where there are two or more plaintiffs or defendants, any one or more of the plaintiffs may recover against one or more of the defendants the premises or any part thereof, or interest therein, or damages according to the right of the parties; but the recovery shall not be for a greater interest than that claimed. (600.)

!

1. A judgment may be reversed as to one defendant, and affirmed as to another.Clements v. Robinson, 54 Ind. 599; Parker v. Small, 58 id. 349.

2. A part of the plaintiffs may recover, and the rest fail.-Steeple v. Downing, 60 Ind. 478.

1061. Damages and set-off. 688. When the plaintiff, in an action of this nature, is entitled to damages for withholding or using or injuring his property, the defendant may set off the value of any permanent improvements made thereon to the extent of such damages, unless he prefers to avail himself of the law for the benefit of occupying claimants. (609.) 1062. Exemplary damages. 689. In case of wanton aggression on the part of a defendant, the jury may award exemplary damages. (610.) 1063. Proof against co-tenant. 693. In an action by a tenant in

common or joint-tenant of real property against his co-tenant, the plaintiff must show, in addition to his evidence of right, that defendant either denied plaintiff's right or did some act amounting to such denial. (614.)

1. When one tenant in common claims under a deed conveying the whole estate, he will be deemed to have ousted his co-tenants, Nelson v. Davis, 35 Ind. 474. 2. A tenant in common may maintain an action for the possession of his part of the real estate, where there is a denial of his rights by his co-tenants.- Bethell v. McCool, 46 Ind. 303.

1064. New trial of right-Bond. 680. The Court rendering the judgment, on application made within one year thereafter by the party against whom judgment is rendered, his heirs, assigns, or representatives, and on the applicant giving an undertaking, with surety to be approved by the Court or Clerk, that he will pay all costs and damages which shall be recovered against him in the action, shall vacate the judgment and grant a new trial. The Court shall grant but one new trial under the provisions of this section. (601.)

1. The granting of a new trial operates as a vacation of the judgment.- Maxwell v. Campbell, 45 Ind. 360.

2. A new trial can not be granted until after the rendition of judgment.- Whitlock v. Vancleave, 39 Ind. 511.

3. It can only be granted after a judgment upon the merits, not after a judgment by default. Fisk v. Baker, 47 Ind. 534.

4. The provisions respecting new trials, of course, do not apply in cases between landlords and tenants holding over.- Over v. Moss, 41 Ind. 463.

5. No new trial as of right is authorized in the foreclosure of a mortgage.― Jenkins v. Corwin, 55 Ind. 21.

6. In actions to enforce specific performance, and to set aside fraudulent convey. ances, this section does not apply. Benner v. Benner, 10 Ind. 256; Fisk v. Baker, 47 id. 534.

7. Actions to quiet the title come within the purview of this section.-Shuman v. Gavin, 15 Ind. 93; Truitt v. Truitt, 37 id. 514; Adams v. Wilson, 60 id. 560.

1065. New trial, after term. 681. If the application for a new trial is made after the close of the term at which the judgment is rendered, the party obtaining a new trial shall give the opposite party ten days' notice thereof before the term next succeeding the granting of the application. (602.)

1. The notice herein is to begin after the new trial has been granted. Muir, 34 Ind. 310.

Skeen v.

2. No notice is necessary if the new trial be granted at the same term in which the judgment was rendered: otherwise, if the granting be of a subsequent term.- Whitlock v. Vancleave, 39 Ind. 511; Blizzard v. Blizzard, 40 id. 344; Marsh v. Elliott, 51 id. 547.

1066. Innocent purchasers. 682. The result of the new trial, if application therefor is made after the close of the term at which the judgment is rendered, shall in no case affect the interest of third persons, acquired in good faith, for a valuable consideration, since the former trial. (603.)

1. A purchaser contracting with the owner of lands holding under condition subsequent, recited in his title, is bound to take notice of such condition. Hershman v. Hershman, 63 Ind. 451.

1067. Damages, in lieu of land. 683. But the party who, on such new trial, shows himself entitled to the lands which have thus passed to the hands of a purchaser in good faith may recover the proper amount of damages against the other party, either in the same or in subsequent actions.

1068. Entry and survey. 686. The Court, on motion, and after notice to the opposite party, may, for cause shown, grant an order allowing the party applying therefor to enter upon the property in controversy, and make survey and admeasurement thereof for the purposes of the action. (607.)

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. (608.)

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. (611.)

I. In actions to quiet title, no particular statement is required of the defendant's interest: it is sufficient to allege that his claim is adverse to, or a cloud upon, the plaintiff's title.- Marot v. Association, 54 Ind. 37.

2. An action may be brought to quiet title in an easement, such as right-of-way.— Davidson v. Nicholson, 59 Ind. 411.

3. Six years is no bar to an action to quiet title. Such action is within the fifteenyear clause respecting limitations.- Caress v. Foster, 62 Ind. 145. See Murphy v. Blair, 12 Ind. 184.

4. Where it appears, in a suit to quiet title, that the plaintiff's right to recover possession is barred by the Statute of Limitations, the title will not be quieted.— Dumont v. Dufore, 27 Ind. 263.

5. Reformation of a deed and quieting title may be joined in the same case. Hunter v. McCoy, 14 Ind. 528.

1071. Quieting title and partition-Rules applicable. 691. The rules above prescribed shall, in such cases, be observed as far as 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. (612.) 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. (613.)

1. See notes to section 1070.

2. A disclaimer by the defendant, and allegation that the possession is in a third person no: a party to the action, entitles him to a judgment for costs.— -McCarnan v. Cochran, 57 Ind. 166

[1881, p. 60. In force September 19, 1881.]

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,

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

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, (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

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. (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