When lands are set off in partition, the person to whom the same are assigned may sue to recover possession pending an appeal. Randles v. Randles, 67 Ind. 434.

A suit can not be maintained in a state court to recover possession of lands from a receiver appointed by a United States court. Fort Wayne, etc., R. R. Co. v. Mellett, 92 Ind. 535.

Lands unlawfully taken by a railroad company for a right of way may be recovered by suit. Graham v. Railway Co., 27 Ind. 260; Cox v. Railroad Co., 48 Ind. 178; Railway Co. v. Kinsey, 87 Ind. 514; Railroad Co. v. Rodel, 89 Ind. 128.

A leasehold constitutes a "valid subsisting interest in real property," within the meaning of this section. Goodwine v. Barnett, 2 App. 16.

1063. (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.

1064. (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.

1065. (1053.) Service upon agent, when.-673. When the defendant is a 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. 1066. (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.

The complaint is sufficient if it states in substance the requirements of the statute. Knight v. McDonald, 37 Ind. 463; Smith v. Kyler, 74 Ind. 575.

The complaint must describe the lands with reasonable certainty, designate the state and county of their location; set forth the interest of the plaintiff, and that the defendant unlawfully detains possession. Leary v. Langsdale, 35 Ind. 74; Jolly v. Ghering, 40 Ind. 139; McCarnan v. Cochran, 57 Ind. 166; Vance v. Schroyer, 77 Ind. 501; Levi . Engle, 91 Ind. 330; Mansur v. Streight, 103 Ind. 358; Simmons v. Lindley, 108 Ind. 297.

The description of the lands should be sufficient to enable an officer to identify them in executing a writ of possession. College Corner Co. v. Moss, 92 Ind. 119; Reid v. Mitchell, 95 Ind. 397; Cunningham v. McCollum, 98 Ind. 38.

A demurrer will lie to a complaint when the lands are not sufficiently described. Lenninger v. Wenrick, 98 Ind. 596.

It is sufficient to state the character of the title of the plaintiff without giving its source. McMannus v. Smith, 53 Ind. 211.

When the source of the plaintiff's title is alleged, no other can be proven. Ragsdale v. Mitchell, 97 Ind. 458.

The complaint must allege that the plaintiff is entited to the possession of the lands. Miller v. Shriner, 87 Ind. 141.

1067. (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.

All defenses, legal or equitable, may be proven under the general denial. Vail v. Halton, 14 Ind. 344; Miles v. Lingerman, 24 Ind. 385; Tracy v. Kelley, 52 Ind. 535;

Freed v. Brown, 55 Ind. 310; Steeple v. Downing, 60 Ind. 478; East v. Peden, 108 Ind. 92.

Matter in abatement must be specially pleaded. Wilson v. Poole, 33 Ind. 443. If bad special answers are held good, it will be cause for reversing a judgment. Abdil v. Abdil, 33 Ind. 460; Over v. Shannon, 75 Ind. 352.

If the general denial is pleaded, the sustaining of a demurrer to a good special answer is harmless. Berlin v. Oglesbee, 65 Ind. 308; West v. West, 89 Ind. 529; Mason v. Roll, 130 Ind. 260.

An answer of disclaimer is not subject to demurrer. McAdams v. Lotton, 118 Ind. 1. The defendant may set up his defense by special answer. Vanduyn v. Hepner, 45 Ind. 589.

If the defendant pleads only in confession and avoidance, he has the burden of proof. Roots v. Beck, 109 Ind. 472.

The defendant may file a cross-complaint and obtain affirmative relief. Emily ʊ. Harding, 53 Ind. 102; McMannus v. Smith, 53 Ind. 211; Gilpin v. Wilson, 53 Ind. 443; Barnes v. Union School Tp., 91 Ind. 301.

Matters occurring after the commencement of the suit must be specially pleaded. Johnson v. Briscoe, 92 Ind. 367.

1068. (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.

If the defendant appears and makes defense he admits his possession of the property. Holman v. Elliott, 86 Ind. 231; Carver v. Carver, 97 Ind. 497; Caspar v. Jamison, 120 Ind. 58; Weigold v. Pross, 132 Ind. 87.

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

When the defendant makes defense the burden is on him to show a lawful possession. Carver v. Carver, 97 Ind. 497.

1069. (1057.) Plaintiff must show title.-685. The plaintiff must recover on the strength of his own title.

The plaintiff must prove title to the lands in controversy in himself. Stehman v. Crull, 26 Ind. 436; Hagenbuck v. McClaskey, 81 Ind. 577; Coan v. Elliott, 101 Ind. 275; Castor v. Jones, 107 Ind. 283; Roots v. Beck, 109 Ind. 472.

The plaintiff must have title at the commencement of the action. Inge v. Garrett, 38 Ind. 96.

If a legal title is alleged, proof of an equitable title can not be made. Groves v. Marks, 32 Ind. 319; Stout v. McPheeters, 84 Ind. 585; Johnson v. Pontious, 118 Ind. 270.

When the plaintiff is entitled to possession he may recover on proof of an equitable title. Burt v. Bowles, 69 Ind. 1.

Prior possession is sufficient proof of title as against a mere intruder. Doe v. West, 1 Blkf. 133; Robinoe v. Doe, 6 Blkf. 85.

The plaintiff must trace his title to the United States, or to some remote grantor in possession. Huddleston v. Ingels, 47 Ind. 498; Smith v. Bryan, 74 Ind. 515; Start v. Clegg, 83 Ind. 78; Peck v. Railway Co., 101 Ind. 366; City v. Wortman, 107 Ind. 404. If both parties claim under the same grantor the title need not be traced to the United States. Pierson v. Doe, 2 Ind. 123; Brandenburg v. Seigfried, 75 Ind. 568; McWhorter v. Heltzell, 124 Ind. 129.

When a particular source of title is alleged no other can be proven. Ragsdale v. Mitchell, 97 Ind. 458.

Proof of title acquired by adverse possession will support an alleged title of fee simple. McWhorter v. Heltzell, 124 Ind. 129.

As to what is necessary to be proven to sustain a title under a judicial sale, see Glidewell v. Spaugh, 26 Ind. 319; Spaulding v. Baldwin, 31 Ind. 376; Huddleston v. Ingels, 47 Ind. 498; Shipley v. Shook, 72 Ind. 511; Stout v. McPheeters, 84 Ind. 585.

1070. (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 cccupation up to the time of its termination.

Mesne profits may be recovered in ejectment; but damages or waste to the freehold are not properly joined therewith. Bottorff v. Wise, 53 Ind. 32; Woodruff v. Garner, 27 Ind. 4.

When the plaintiff recovers possession he is entitled to nominal damages without proof. Hill v. Forkner, 76 Ind. 115; Dobbins v. Baker, 80 Ind. 52.

Damages may be allowed until the date of trial. Dobbins v. Baker, 80 Ind. 52. Exemplary damages may be recovered in cases of wanton aggression. Hill v. Forkner, 76 Ind. 115.

No property is exempt from execution on a judgment for damages. Smith v. Wood, 83 Ind. 522.

Damages for use and occupation is limited to six years unless the defendant claims for improvements. Hyatt v. Cochran, 85 Ind. 231.

1071. (1059.) When plaintiff recovers damages only.-678. If the interest of the plaintiff expire before the time in which he could be put in possession, he shall obtain a judgment for damages only.

1072. (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.

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

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

1073. (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.

When the defendant claims for improvements, he may be charged with the rents for more than six years. Hyatt v. Cochran, 85 Ind. 231.

Under this section the defendant can only be allowed for improvements an amount equal to the damages assessed against him. Wernke v. Hazen, 32 Ind. 431.

1074. (1062.) Exemplary damages.-689. In case of wanton aggression on the part of a defendant, the jury may award exemplary damages.

As to recovery of exemplary damages, see Hill v. Forkner, 76 Ind. 115.

1075. (1063.) Proof against co-tenant.-693. In an action by a tenant in common or joint-tenant of real property against his cotenant, 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.

When one tenant in common claims under a deed conveying the whole estate, he will be deemed to have ousted his co-tenant. Nelson v. Davis, 35 Ind. 474.

In order that the possession of a tenant in common shall be adverse to the other tenants, there must be an actual ouster of the latter. Nicholson v. Caress, 76 Ind. 24; Patterson v. Nixon, 79 Ind. 251.

One tenant in common may obtain title to the whole estate by an adverse possession? Bowen v. Preston, 48 Ind. 367; English v. Powell, 119 Ind. 93.

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.

1076. (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.

The motion for a new trial need not be in writing, the court taking notice of the facts of record. Zimmerman v. Marchland, 23 Ind. 474; College v. Wilkinson, 89 Ind. 23; Heberd v. Wines, 105 Ind. 237.

Notice of the application for a new trial need not be given to the adverse party. Steeple v. Downing, 60 Ind. 478; Whitlock v. Vancleave, 39 Ind. 511; Stanley v. Holliday, 113 Ind. 525.

The application need not be passed upon within a year after the rendition of the judgment. Rodman v. Reynolds, 114 Ind. 148.

When the application is properly made the court has no discretion, but a new trial must be granted. Railway Co. v. McBroom, 103 Ind. 310; Anderson v. Anderson, 128 Ind. 254.

This section applies to actions where right of possession is claimed under a lease. Campbell v. Hunt, 104 Ind. 210.

But it is not applicable in an action against a tenant who holds over. Over v. Moss, 41 Ind. 463.

If judgment is rendered by default a new trial can not be obtained under this section. Fish v. Baker, 47 Ind. 534.

New trials may be granted under this section in actions to quiet title. Shuman v. Gavin, 15 Ind. 93; Earle v. Peterson, 67 Ind. 503; College v. Wilkinson, 89 Ind. 23; Hammann v. Mink, 99 Ind. 279; Anderson v. Anderson, 128 Ind. 254.

And in actions for partition when the title to lands is in issue. Kreitline v. Franz, 106 Ind. 359; Powers v. Nesbit, 127 Ind. 497; Anderson v. Anderson, 128 Ind. 254. The form of the issues can not abridge the right of a party to a new trial. Moor v. Seaton, 31 Ind. 11; Bisel v. Tucker, 121 Ind. 249.

This section does not apply to actions to recover damages for the obstruction of easements. Larrimore v. Williams, 30 Ind. 18.

Nor to actions to set aside fraudulent conveyances, or the specific performance of contracts. Truitt v. Truitt, 37 Ind. 514.

Nor to actions to enforce mortgage or other liens. Butler v. Conard, 94 Ind. 353; Jenkins v. Corwin, 55 Ind. 21; Williams v. Thames Co., 105 Ind. 420.

Nor to proceedings by an administrator to sell lands. Fralich v. Moore, 123 Ind. 75. The application may be made pending an appeal to the supreme court. . McBroom, 103 Ind. 310.

Railway Co. But one new trial can be granted under this section in the same cause. Ewing v. Gray, 12 Ind. 64; Crews v. Ross, 44 Ind. 481; Bitting v. Ten Eyck, 85 Ind. 357.

Failure to obtain a new trial for cause does not prevent an application under this section. Shuman v. Gavin, 15 Ind. 93; Scranton v. Stewart, 52 Ind. 68.

Moving in arrest of judgment does not cut off the right to have a new trial under this section. Anderson v. Anderson, 128 Ind. 254.

The new trial must be granted as to the issues on the cross-complaint as well as to those upon the original complaint. Bisel v. Tucker, 121 Ind. 249.

Defects in bonds filed under this section are cured by statute. Stanley v. Dailey, 112 Ind. 489.

The taking of a new trial waives all errors committed on the first trial. Bitting v. Ten Eyck, 85 Ind. 357.

Parties can not be required to go to trial at the same term a new trial is granted. Skeen v. Muir, 34 Ind. 310.

If a new trial is improperly granted the supreme court may direct judgment to be entered on the first verdict. Williams v. Thames Co., 105 Ind. 420.

1077. (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.

The notice must be given after the granting of the new trial. Skeen v. Muir, 34 Ind. 310; Whitlock v. Vancleave, 39 Ind. 511.

The failure to give the notice does not affect the order granting the new trial but only postpones the time of trial. Stanley v. Holliday, 113 Ind. 525; Nitche v. Earle, 117 Ind. 270.

1078. (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.

Persons who have notice of the ejectment suit can not acquire an interest in the lands during the time allowed for a new trial which can be asserted against the owner of the lands. Smith v. Cottrell, 94 Ind. 379.

If the plaintiff recovers, and a new trial is granted and the defendant recovers, persons purchasing from the plaintiff before granting of the new trial are not innocent purchasers. Griswold v. Ward, 128 Ind. 389.

1079. (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.

1080. (1068.) Entry and survey.-686. The court, on motion, and after notice to the opposite party, may, for cause shown, grant an or