probably insolvent, or at the request of any one of them, when they are residents and solvent. Either the payee or surety in a note is entitled to this writ against the maker, in a proper case made, without reference to the solvency of other parties bound therefor. Fitzgerald v. Gray, 59 Ind. 254. 1197. (1183.) Habeas corpus.-733. The defendant may have the same remedy by writ of habeas corpus as in other cases of arrest and bail. 1198. (1184.) Before justices.-734. The proceedings may be had before justices of the peace in all cases within their jurisdiction. 1199. (1185.) Jurisdiction.-735. The affidavit and written undertaking may be filed, and proceedings had in any county where the defendant may be found. 1214. Effect of partial partition. 1245. Commissioner to sell-Bond. 1216. Commissioner's deed. 1217. Commissioners can not purchase. 1218. Proceeds, how distributed. 1209. Minors, parties-Commissioners 1220. Vacancy-Successor's acts valid. may plat into lots. 1210. Report, how made. 1211. Confirmation-Judgment. 1221. Pay of commissioners. 1222. Costs, how apportioned. 1223. Proceedings, when reviewed. [1881 S., p. 579. In force September 19, 1881.] 1200. (1186.) Who may compel.-1. Any person holding lands as joint-tenant or tenant in common, whether in his own right or as executor or trustee, may compel partition thereof in the manner provided in this act. An administrator or executor may also compel partition as a tenant in common or joint-tenant may do, whenever, in the discharge of his duties as such, it shall be necessary for him to sell the estate of the decedent therein. During the existence of a life estate, the remainder-men can not maintain an action for partition. Schori v. Stephens, 62 Ind. 441; Coon v. Bean, 69 Ind. 474; Stout v. Dunning, 72 Ind. 343. Title and right of possession, or right of possession, must be in the plaintiff to give him a right of partition. Schori v. Stephens, 62 Ind. 441. Trustees holding an undivided title in lands may have partition thereof. Locke v. Barbour, 62 Ind. 577. Assignees of insolvent debtors may have partition of lands conveyed to them, when the court so directs in the execution of the trust. Jewett v. Perrette, 127 Ind. 97. Owners of a life estate in lands may have partition. Shaw v. Beers, 84 Ind. 528; Hawkins v. McDougal, 125 Ind. 597. Persons owning a life estate in lands, and an undivided portion thereof in fee, may have the latter portion set off. Lynch v. Leurs, 30 Ind. 411. On the vesting of the legal title of lands of a married man under a judicial sale, his wife may have her portion set off. Taylor v. Stockwell, 66 Ind. 505; Roberts v. Shroyer, 68 Ind. 64; Ketchum v. Schicketanz, 73 Ind. 137; Richardson v. Schultz, 98 Ind. 429; Caywood v. Medsker, 84 Ind. 520; Foltz v. Wert, 103 Ind. 404; Elliott v. Cale, 113 Ind. 383. No demand is necessary for partition prior to bringing a suit in such case for partition. McCracken v. Kuhn, 73 Ind. 149. The grantee of a married woman in such cases may have partition. Hollenback v. Blackmore, 70 Ind. 234; Youst v. Hayes, 90 Ind. 413. If a widow holding lands derived from her husband remarries, she may have partition of the lands although she may not convey the same. Klinesmith v. Socwell, 100 Ind. 589. Persons need not be in possession of lands to be entitled to partition. Godfrey v. Godfrey, 17 Ind. 6. [2 R. S. 1852, p. 329. In force May 6, 1853.] 1201. (1187.) Petition-Contents-Jurisdiction.-2. Any such tenant may apply to the circuit court, or court having probate jurisdiction of the county in which the lands or any part thereof may lie, by petition, setting forth a description of the premises and the rights and titles therein of the parties interested. The petition should set forth the interest of each of the parties in the lands. Lease v. Carr, 5 Blkf. 353. The derivation of the title of the parties need not be set forth in the petition, it only being necessary to state the interest of each. Blakely v. Boruff, 71 Ind. 93; Utterback v. Terhune, 75 Ind. 363; Pipes v. Hobbs, 83 Ind. 43. If the plaintiff sets forth the manner of his deriving title, the facts must show that he has title. Spencer v. McGonagle, 107 Ind. 410. It need not be expressly alleged that the lands lie in the county where suit is brought. Godfrey v. Godfrey, 17 Ind. 6. If the lands lie in different counties suit may be brought in either county. Shull . Kennon, 12 Ind. 34; Jones v. Levi, 72 Ind. 586; Hyatt v. Cochran, 69 Ind. 436. An allegation that the parties are the owners in fee of the lands means that they are the owners in fee-simple. McMahan v. Newcomer, 82 Ind. 565. The petition may be so framed that the title of all parties claiming an interest in the premises may be settled. Elston v. Piggott, 94 Ind. 14; Luntz v. Greve, 102 Ind. 173; Spencer v. McGonagle, 107 Ind. 410. All persons claiming an interest in the lands should be made parties to the action. Milligan v. Poole, 35 Ind. 64; Clark v. Stephenson, 73 Ind. 489; Schissel v. Dickson, 129 Ind. 139. [1881 S., p. 579. In force September 19, 1881.] 1202. (1188.) Proceedings as in civil cases.-5. The proceedings, practice, and pleadings shall be the same as in civil suits, except as otherwise provided in this act. An action for partition is a civil action. Kyle v. Kyle, 55 Ind. 387. A trial by jury may be demanded. Kitts v. Wilson, 106 Ind. 147. The defendant may set up as a defense that he is either the legal or equitable owner of the entire estate. Davis v. Davis, 43 Ind. 561. The defendant may set up in bar of the action a prior parol partition. Moore v. Kerr, 46 Ind. 468; Hauk v. McComas, 98 Ind. 460; Savage v. Lee, 101 Ind. 514. Defendants to the action may by cross-complaint set up their claims and have their titles quieted. Randles v. Randles, 63 Ind. 93; Schafer v. Schafer, 68 Ind. 374; McFerran v. McFerran, 69 Ind. 29. All legal and equitable rights of the parties to the lands may be settled in the action. Martindale v. Alexander, 26 Ind. 104; Milligan v. Poole, 35 Ind. 64. Claims for improvements made by one tenant may be set up and adjusted. Martindale v. Alexander, 26 Ind. 104; Elrod v. Keller, 89 Ind. 382; Carver v. Coffman, 109 Ind. 547. As to the manner of setting up such claim, and when it will be allowed, see Stafford v. Nutt, 35 Ind. 93; Elrod v. Keller, 89 Ind. 382; Alleman v. Hawley, 117 Ind. 532. A defendant may set up by counter-claim a mortgage on the lands, and have the same foreclosed. Conyers v. Mericles, 75 Ind. 443. An administrator can not intervene and have the lands ordered sold to pay the debts of his decedent. Douthitt v. Smith, 69 Ind. 463; Clayton v. Blough, 93 Ind. 85. When the title to the lands is directly in issue, a new trial without cause may be demanded. Earle v. Peterson, 67 Ind. 503; Cooter v. Baston, 89 Ind. 185; Hammann . Mink, 99 Ind. 279; Kreitline v. Franz, 106 Ind. 359; Powers v. Nesbit, 127 Ind. 497. Ordinary motions for new trials must be made at the term the finding is made or verdict rendered. Jones v. Jones, 91 Ind. 72. The fifteen years' statute of limitations applies to actions of partition. Nutter v. Hawkins, 93 Ind. 260; McCray v. Humes, 116 Ind. 103. Tenants in common must be ousted from possession before the statute of limitations will run. Jenkins v. Dalton, 27 Ind. 78; Nicholson v. Caress, 59 Ind. 39; Kent v. Taggart, 68 Ind. 163. [1869 S., p. 88. In force August 16, 1869.] 1203. (1189.) Interlocutory judgment-Sale when.-9. If upon trial of any issue, or upon default, or by consent of parties, it shall appear that partition ought to be made, the court shall award an interlocutory judgment that partition be made to parties who may desire the same, specifying therein the share assigned to each, and taking into consideration advancements to heirs of a person dying intestate; and the residue of the premises shall remain for the persons entitled thereto, subject to a future partition. But if upon trial of any issue, or upon default, or by confession or consent of parties, it shall appear that the lands of which partition is demanded, can not be divided without damage to the owners, then, and in that case, the court in its discretion may order the whole or any such part of the premises to be sold, as provided for in section eighteen of this act [§ 1199]. The order for partition should specify the interest of each of the parties in the lands. Lease r. Carr, 5 Blkf. 353. The order for partition settles and determines the rights of the parties. Wright v. Nipple, 92 Ind. 310; Fleenor v. Driskill, 97 Ind. 27. If a portion of the land can be divided without injury, such portion should be ordered set off. Lucas v. Peters, 45 Ind. 313. Advancements should be taken into consideration in decreeing partition. Kepler v. Kepler, 2 Ind. 363; New v. New, 127 Ind. 576; Scott v. Harris, 127 Ind. 520. An appeal does not lie from an interlocutory judgment decreeing partition. Davis v. Davis, 36 Ind. 160; Rennick v. Chandler, 59 Ind. 354. An appeal may be taken from a judgment ordering a sale of lands, or decreeing a lien on the same. Fleenor v. Driskill, 97 Ind. 27; Kreitline v. Franz, 106 Ind. 359; Rennick v. Chandler, 59 Ind. 354. [2 R. S. 1852, p. 329. In force May 6, 1853.] 1204. (1190.) Testator's intention governs.-10. Such court shall not order or affirm partition of any real estate contrary to the intention of a testator, expressed in his will. When real estate is devised, partition thereof can not be made contrary to the directions in the will. Brown v. Brown, 43 Ind. 474; Kepley v. Overton, 74 Ind. 448. 1205. (1191.) Commissioners.-11. Upon judgment of partition, the court shall appoint three disinterested resident freeholders of the county in which such court is held, not of kin to any of the parties, who shall make partition of such lands, in pursuance of the judgment of the court. If the commissioners appointed fail to act, others may be appointed. McCormick v. Taylor, 5 Ind. 436. 1206. (1192.) Oath.-12. Before proceeding to discharge their duties, such commissioners shall take an oath faithfully to perform the duties of their trust, which oath, if taken in open court, shall be entered in their order-book, and, if not, shall be indorsed on the warrant issued to them to make such partition. If the county surveyor is a commissioner, he may administer the oath to the other commissioners. Wilcox v. Monday, 83 Ind. 335. The omission of the seal of the court to the warrant issued to the commissioners is immaterial, and the writ will be deemed amended. Crane v. Kimmer, 77 Ind. 215. 1207. (1193.) Shares, when set off together.-13. Two or more persons may, if they choose, have their shares set off together. 1208. (1194.) Guardians act for wards.-14. In all proceedings under this act, guardians may act for their wards as their wards might have acted, being of age. Service of process may be made upon the guardian at law of minors. Richards . Richards, 17 Ind. 636. Whatever a minor might do if of age, his guardian may do without the consent or presence of his ward. Bundy v. Hall, 60 Ind. 177. Guardians of minors may bring or defend actions in their own names for partition of the lands of their wards. Bowen v. Swander, 121 Ind. 164; Miller v. Smith, 98 Ind. 226. [1859, p. 159. In force March 4, 1859.] 1209. (1195.) Minors, parties-Commissioners may plat into lots. -1. In all cases where proceedings are now pending or may hereafter be commenced in any of the courts of this state, for the partition of real estate in which any minor is a party in interest, the commissioners appointed to make such partition are hereby authorized to lay off into lots or out-lots, streets, and alleys any lands included in such partition, and to make a plat thereof, which shall be reported to the court for approval or rejection. If confirmed by the court, such plat shall be acknowledged by such commissioners in open court, and shall be recorded as other plats of like nature are recorded, and shall have the same validity in law as if made by a legal proprietor of such lands, of full age. It shall be the duty of the court to determine, in such cases, upon the return of such plats by said commissioners, whether it will be for the interest of the parties that such land should be laid off into lots or out-lots, streets, and alleys; and if so, then partition may be made thereof by said commissioners as in other cases, if practicable, without detriment to the parties interested; and if the same shall not be susceptible of partition, then said lots or out-lots may be sold by order of the court, as in other cases. Commissioners appointed to make partition may lay off the lands into lots, streets and alleys, and guardians of minors may consent thereto. City v. Kingsbury, 101 Ind. 200. [1881 S., p. 579. In force September 19, 1881.] 1210. (1196.) Report, how made.-15. The commissioners shall make to the court, and acknowledge in open court, their report, or shall sign and swear to their report before some person authorized to administer oaths; which report shall specify, by divisions or lots, or metes and bounds, or by plats, the shares assigned to each party. A majority of the commissioners may make a report. Griffy v. Enders, 60 Ind. 23. The report should describe the lands set off with such certainty as will enable the same to be located. Duling v. Johnson, 32 Ind. 155. If the lands are so described that they can be located by a survey it will be sufficient. Boyd v. Doty, 8 Ind. 370; Miller v. City, 123 Ind. 196. The commissioners may correct by their report inaccurate descriptions of the lands, and the court may order such descriptions corrected in the other proceedings. Randles v. Randles, 63 Ind. 93. The commissioners have no authority to change the lines between the lands divided and the adjacent lands. Brown v. Anderson, 90 Ind. 93. [2 R. S. 1852, p. 329. In force May 6, 1853.] 1211. (1197.) Confirmation-Judgment.-16. Such report, if confirmed by the court, shall be spread upon the order-book, and judgment of partition be rendered accordingly. Judgment of partition does not give the parties any new title, but simply allots to each a share of the land to be held in severalty and divested of the title of their cotenants; but it settles the rights of the parties at the time of the entry of judgment. Avery v. Akins, 74 Ind. 283; Crane v. Kimmer, 77 Ind. 215; L'Hommedieu v. Railway Co., 120 Ind. 435; Isbell v. Stewart, 125 Ind. 112; Hanna v. Scott, 84 Ind. 71. The judgment has no effect on after-acquired titles. Thorp v. Hanes, 107 Ind. 324. If the title to the lands is directly put in issue the judgment of partition is conclusive as to the rights of the parties. Thorp v. Hanes, 107 Ind. 324; Watson v. Camper, 119 Ind. 60; L'Hommedieu v. Railway Co., 120 Ind. 435; Isbell v. Stewart, 125 Ind. 112. An appeal from a judgment of partition only has the effect of staying the judgment for costs, the parties being entitled to the lands set off to them. Randles v. Randles, 67 Ind. 434. If a party dies pending the action a decree setting off to such party a portion of the lands is a nullity. Harness v. Harness, 63 Ind. 1. 1212. (1198.) Report, how set aside-New commissioners.-17. The court, before confirmation, may set aside such return for good cause shown, and commit the duty of partition anew to the same or |