spect thereto; it was held that the case was not one which involved the title to real estate, in such sense that a new trial as a matter of right was allowable; Sterne v. Vert, III-409.

Where A., having knowledge of the facts, permits B. to place on his land a house which B. has wrongfully removed from the premises of C. and refuses to allow the owner to restore it to its original location, claiming ground rent due from B., there is such an adoption by A. of B.'s wrong doing and such an appropriation of the property as to render him liable for the damages, and in such case A. will not be entitled to a new trial, as matter of right, under this section. Such new trial can be demanded only when the purpose of the action is to recover possession of real estate or to settle and quiet conflicting titles thereto; certainly not in an action in tort, to recover damages for wrongfully severing a building from realty and for wrongfully removing and appropriating it etc.; Jonsson v. Lindstrom, 114-152.

An action to enjoin a defendant from obstructing and closing up a right of way and for damages is not an action to recover land, but to recover damages for obstructing an easement, with relief by injunction asked against the future obstruction thereof. A new trial, as matter of right, is not a right of the losing party; Hall v. Hedrick, 125-330.

In an action against certain contractors on a city street it was alleged that the defendants had unlawfully taken possession of certain real estate, of which plaintiff was the owner, without having condemned it, and threatened to do irreparable damage thereon by cutting down trees and vines grown thereon by plaintiff, and by grading the land and making a street thereupon, without license from the plaintiff and with notice of her ownership. The prayer was to quiet her title to the land and that the defendants be enjoined from further trespass. Such a complaint must be regarded as in a proceeding to enjoin the defendants from the commission of the threatened injury therein set forth, proceeding on the theory that plaintiff had no other adequate remedy, and not as an action quia timet. Therefore, a new trial, as matter of right, is properly refused — such right does not extend to actions for relief by injunction; Miller v. Indianapolis, 123-199.

In an action by a creditor who asserts that his debtor is the real owner of real estate, and that the title thereto has been fraudulently taken in the name of another, who holds it in trust for the creditors of one of the parties defendant, the plaintiff asserts no claim of title or right to the possession of the land. In such an action the losing party is not entitled to a new trial as a matter of right, inasmuch as the title comes in question collaterally only and as a mere incident; Fralich v. Moore, 123-77. The purpose of the law in the legislation regulating the administration of decedents' estates is to afford a speedy method for the settlement thereof. The law is inconsistent with the theory that this section applies to proceedings to sell real estate of a decedent for the payment of debts, and allows any contestant a right to take a new trial within one year from the rendition of the judgment. In such a case the administrator asserts no title in himself. He asserts that the decedent owned the land and that it is subject to the payment of his debts; Fralich v. Moore, 123-77.

1065. New trial, after term. The provision of this section requiring the party obtaining a new trial as of right, at a term subsequent to that of the rendition of the judgment, to give the adverse party ten days' notice thereof before the term next succeeding the granting of the application, is intended merely to prevent either party from forcing the opposite party into trial at or during the term at which the new trial was granted, or "before the term next succeeding," under the provisions of section 516. Such being the purpose, where a new trial has been granted, under section 1064, on an application made subsequent to the term of judgment rendered, the failure of the party who has taken the new trial to give the opposite party the prescribed notice, as herein provided, does not operate as a waiver of the right to such new trial, or authorize the court to set aside the order granting it; Stanley v. Holliday, 113-530; Nitche v. Earle, 117-272.

1070. Action to quiet title. An action to quiet title to land is one in which, under section 1064, a new trial may be demanded, as of right, without cause; Stanley v. Dailey, 112-490.

Where a plaintiff seeks to quiet title to all the land in controversy under a specific claim that he is the absolute owner thereof, he can not succeed by showing that he is entitled to partition, or to some relief of an entirely different character. A complaint to quiet title, where the claim is to the whole interest in the land, as absolute owner,

can not be good as a complaint for partition. Where a party sues to quiet title he must show title in himself to the land he claims, and that the defendants have none, or, at least, none such as they assert. If the adverse party has any interest in the land it can not be cut off by an action to quiet title; Johnson v. Murray, 112-157.

In an action to quiet title if the complaint describes the property, alleges that the defendant is claiming an interest therein and asks for a judgment, a decree rendered quieting title and establishing the line between the parties to the suit, within the scope of the litigation, will be binding on all the parties and those claiming title through them; Satterwhite v. Sherley, 127-61.

1072. Disclaimer-Costs. Action of ejectment for the possession of real estate; answer, inter alia, the defendant disclaims any interest in the land of the plaintiff, as described in his complaint." This section, in terms, refers to actions for partition and to quiet title. Under the statute a disclaimer can not bar a plaintiff's right to a judgment, for the reason that, under the statute, a plaintiff is entitled to judgment for possession and for actual damages; it neither bars the action nor defeats the right to damages, but it confesses that the plaintiff is entitled to that relief. Its office is merely to save costs which accrue after the entry of a proper judgment, embodying the relief the law awards the plaintiff. As it is all it professes to be, a demurrer will not lie. If, however, the defendant should, in defiance of the judgment and in opposition to his disclaimer, refuse to yield possession and thus compel the issuing of a writ of ouster, he would, undoubtedly, burden himself with all costs; M'Adams v. Lotton, 118-2.

Disclaimer, as a pleading, is recognized, under the Code, only in actions for partition and to quiet title. Therefore, in an action by an administrator to set aside a transfer of a note and mortgage and to recover the same as a part of the assets of the estate of the intestate, a paper filed as a disclaimer was nothing more than an answer, confessing the cause of action; Walker v. Steele, 121-438.

1073. Real party in interest to be plaintiff. This section providing that any person having a right to recover possession of or quiet title to real estate in the name of another, shall have a right to sue in his own name, gives validity to deeds which, prior to its passage, were void as to the parties in possession, and the action for the recovery of the lands covered by such deeds must be prosecuted in the name of the grantee; Peck v. Sims, 120-351.

Under this section and section 251, construed together, one who has conveyed land adversely occupied by another can not maintain an action in his own name to recover possession for the benefit of his grantee; such action must be instituted in the name of such grantee, who is the real party in interest; Peck v. Sims, 120-350.

1080. Color of title. To constitute an adverse possession color of title is not necessary. It is enough that there is an assertion of ownership and unbroken possession for the requisite length of time. Twenty years' possession, in this state, will defeat the holder of the paper title; Herff v. Griggs, 121-475.

1081. What is color of title. A sale of land under a decree foreclosing a mortgage is sufficient to give the purchaser and those claiming under him color of title as against the world. Such parties, being in the occupancy of the land under the color, are entitled to the benefit of the statutory provisions made in behalf of occupying claimants; Goodell v. Starr, 127-201.

A sale on a school fund mortgage, although void, gives a color of title to the purchaser; Paxton v. Sterne, 127-292.

1085. Occupying claimant Adjustment of amount due. A grantee of mort gaged lands, although he has not paid off the mortgage, is entitled to the possession of the premises conveyed to him, even after foreclosure and sale, as against the mortgagor. In an action to obtain such possession, however, the purchaser at the foreclosure sale, who has obtained possession by virtue of such sale, may maintain a cross complaint to have the mortgage foreclosed as against such grantee; and such mortgage may be foreclosed and the land, if the decree be not satisfied within the time limited and designated, may be ordered to be sold without relief from valuation or appraisement laws. Such grantee can not claim the possession until he has paid off the decree; Goodell v. Starr, 127-202.

ARTICLE 39-FORECLOSURE OF MORTGAGE.

1090. Entry of satisfaction — Effect. In entering a satisfaction of a mortgage on the margin of the record, as provided for in this section, it is not necessary to de

scribe the real estate in the release. A description of the real estate being unnecessary to the validity of such release and satisfaction, a description thereof in such release may be treated as surplusage, and an entry properly describing or referring to and identifying the particular mortgage, would operate as a cancellation, notwithstanding the entry might contain an erroneous description of the real estate; Bryant v. Richardson, 126-150.

1091. Certificate of satisfaction - Record. This section provides for the release by certificate of the mortgagee or his lawful agent. The release of a trust deed or mortgage by the trustee named therein, a non resident, is not rendered ineffectual for the reason that the appointment of such non resident trustee may have been invalid, under section 2988. This section (1091) provides that a mortgagee may cancel a mortgage by an agent, and the statute does not prohibit the appointment of a non resident as such agent; Bryant v. Richardson, 126–153.

1093. Assignments, how made. The effect of the act of 1877 (§§ 1093-4), construed in connection with section 2931, was to postpone or render assignments of mortgages void as against any subsequent purchaser or mortgagee, in good faith, for a valuable consideration, unless such assignments were recorded as herein provided. So, when assignments of mortgages are within the recording acts, a release executed by the person who appears by the records to be the owner of the mortgage is sufficient to protect a purchaser who has, in good faith, parted with his money on the faith of such release, and without other notice than that afforded by the record. Therefore, a subsequent mortgagee, without notice, will be justified in relying on a release of a prior mortgage, executed by the administratrix of the prior mortgagee, entered of record four years after sections 1093-4 went into force, without demanding the production of the note and mortgage, and without inquiring as to the authority of the administratrix to execute the release; Conn. M. L. I. Co. v. Talbot, 113-377.

Where the assignee of a mortgage may, under the recording acts, by procuring and putting of record an assignment, give notice of his rights, his neglect so to do will estop him from asserting the priority of his mortgage over that of a subsequent mortgagee, who took his security on the faith of a release executed by the administratrix of the original mortgagee; Conn. M. L. I. Co. v. Talbot, 113-376.

ARTICLE 40- HABEAS CORPUS.

1119. Judgment etc. when not questioned -- Application for a writ of habeas corpus. Petitioner for the writ alleged that he had been twice convicted of arson, and that in each instance, on appeal, the judgment had been reversed. That a prosecution for conspiracy, in connection with the crime of arson, was then instituted on affidavit and under information, which prosecution was dismissed. That an indictment was then returned against him, which indictment was, on his petitioner's — motion, quashed and he was ordered, by the court, to remain in custody to answer any charge that might be made against him by the grand jury. He further alleged that no accusation having been presented against him, he applied for a writ of habeas corpus and was discharged, on his own recognizance, to await the action of the grand jury; immediately on such discharge, however, he was again arrested and reconfined in jail by the sheriff on a pretended affidavit and information made by the sheriff, charging him with conspiracy, and that he was then in the custody of such sheriff. This section provides that "no court or judge shall inquire into the legality of any judgment or process whereby the party is in his custody

營 * *

upon a warrant

issued from the circuit court upon an indictment or information." The petition does not make a case entitling petitioner to a discharge, and the judgment of the court, nisi prius, of remand can not be disturbed, it not appearing that there was any delay in the last prosecution or that the offense last charged against the prisoner was the same as that charged against him in either of the prior prosecutions; Kinningham v. Dickey, 125-181.

This writ can not be used for the mere correction of errors. So, where there is a mittimus issued by a court having jurisdiction, under which the petitioner is held in custody, such petitioner, to acquire his liberty by means of the writ, must show that his commitment is under a void judgment. That the judgment is merely erroneous no matter how gross the error-will not suffice; M'Laughlin v. Atchison, 127475.

1131. When filed. An information in the nature of a quo warranto is the appropriate remedy for obtaining possession of an office to which a person has been lawfully elected and has become duly qualified to hold. It is, also, the proper remedy for the removal of the incumbent of an office, who has usurped and unlawfully continues to hold it. Both remedies may be sought by the same information; Griebel v. State, ex rel., 111-372.

In a proceeding by information, under the second subdivision of this section, against a person for having done an act which, by the provisions of law, has worked a forfeiture of an office held by him, the prosecuting attorney may proceed and the information will be sufficient if it states such facts as show a forfeiture of the office; Chambers v. State, ex rel., 127–368.

1133, 1134. Of what to consist. The essentials of an information in the nature of a quo warranto, brought on the relation of an individual to establish his right to office, are that it contain such a plain statement of the facts which constitute the grounds of the relator's claim as makes it affirmatively appear that he has title to the office in controversy, so as to "show his interest in the matter." So, where it contains a statement of all the facts essential to constitute a cause of action, although such facts may be stated in general, indefinite or ambiguous terms, it will be good as against a demurrer, notwithstanding a motion to make more certain and specific might be entertained with propriety; Jones v. State, ex rel., 112–195.

1145. To annul instrument. This section provides that an information in the nature of a quo warranto may be prosecuted for the purpose of annulling or vacating any letters patent, certificate or deed issued by the state authorities, when there is reason to believe that the same were obtained by fraud etc. These provisions are manifestly applicable only to such certificates as issue in relation to real estate; they can not be applied to a license issued authorizing a respondent to practice medicine, surgery and obstetrics in this state; State, ex rel. v. Green, 112-473.

ARTICLE 43 - MANDATE.

1168. To whom and for what purpose. The use of the writ of mandate is limited to the enforcement of obligations imposed by law. So, where the duties resting on a corporation, or its trustees, grow out of or result from matters of contract, the writ of mandamus will not run to such corporation, or its trustees, whether in their corporate capacity or as individuals, to compel the performance of the contract-the party aggrieved must be referred to the ordinary remedy, as he may have it, at law or in equity; State v. Trustees etc., 114-396.

Mandamus will lie against a justice of the peace to compel him to enter judgment, to make correct docket entries in accordance with the facts and to perform all duties. that are purely ministerial; but, the discretion of such justice will not be controlled by the writ. So, where a civil suit has been dismissed, by a justice, for want of prosecution, a writ may issue to compel such justice to enter a judgment in favor of the defendant against the plaintiff for his costs, and to issue an execution thereon; State, ex rel. v. Engle, 127-458.

The courts can not, by mandamus, compel the governor of the state to act in matters which pertain to his duties as governor. Wherefore, the writ will not lie to compel him to issue a commission to one who claims to have been elected to an office; Hovey v. State, ex rel., 127-589.

A writ of mandamus is an extraordinary remedy which can be invoked only in cases where a clear legal right is invaded and its aid is required to protect the petitioner for it from substantial injury. So, a vendor of intoxicating liquors can not maintain a petition for a mandate to compel a city treasurer to accept a license fee under an ordinance of the city, in order that he may, prior to the expiration of a license already issued to him, demand of the city clerk a new license; State, ex rel. v. Bonnell, 119–494.

The writ of mandamus can not be rightfully invoked to settle a doubtful claim to an office or to have the title to an office adjudicated upon, as between adverse claimants. In such a case an information in the nature of a quo warranto affords the proper remedy. Where, however, the relator holds a prima facie and uncontested title to the office, or his title has been adjudicated upon and finally established

by a competent tribunal, a writ of mandate may issue to put him in possession of the office, as well as of the books, papers and other property pertaining to it; Mannix v. State, ex rel., 115-250.

A writ of mandamus will not be granted to control the discretion of a person, board, corporation or tribunal where a discretionary power has been conferred or where such a power confessedly exists. Therefore a writ will not issue to compel a board of county commissioners, after making an order for the construction of a bridge, to appoint a superintendent to take charge of the work of construction. The appointment of such superintendent is within the discretion of the board (2888), and there is not much room to doubt that the board has the power to let the contract and construct the bridge without the intervention of a superintendent; State, ex rel. v. Board etc., 125-248.

Mandamus will not issue to compel a board of county commissioners to carry into effect an order it may have entered for the construction of a new bridge. The board has, and of necessity must have, a discretion to build it or not State, ex rel. v. Board etc., 125-251.

ARTICLE 45 - PARTITION.

1188. Proceedings as in civil cases. In a proceeding for partition by one of the children of a deceased father against the widow and the other children, if the title is not directly put in issue by the pleadings, a decree adjudging the widow to be entitled to an estate for life is not conclusive as to her interest; Habig v. Dodge, 127–37. 1189. Interlocutory judgment - Sale when. In an action for partition between heirs the finding, by the court, stated that the deceased ancestor made advancements to certain of his children, and that no other advancements were made to either the children or the grandchildren of the deceased. It stated, however, also, after the facts were found, that the advancements were made with the avowed purpose of making the children to whom the advancements were made as nearly equal as he was able to his two other children, and that deceased, at the time, said that he was not able to give them an amount equal to the advancements he had made to his two other children. Disregarding the matter of evidence improperly in the finding, or taking the finding as a whole, without eliminating the evidence, the finding was sufficient to support a conclusion of law that the money paid by the ancestor to his children was by way of advancement and not as a gift, and warrants the charging of them therewith; Whitcomb v. Smith, 123-330.

In an interlocutory order decreeing a partition of lands among heirs in "taking into consideration advancements to heirs" of the intestate ancestor the court can do no more than fix the amount to be charged against a co-tenant as an advancement, leaving it to the commissioners to make the proper apportionment of the land between the co-tenants, deducting from the share of a tenant the amount advanced to him; Scott v. Harris, 127-523.

Money borrowed from the estate by an heir may be treated as an advancement, in a proceeding instituted by the heirs for a partition of the ancestor's estate, after the estate is settled; New v. New, 127-585.

1194. Guardians act for wards. This section and section 2542 clearly authorize a guardian to institute an action for the partition of lands in which his ward has an interest and to prosecute it in his own name; Bowen v. Swander, 121-167.

1204. Proceeds, how distributed. The provisions of this section enter into and form part of the bond of a commissioner to sell real estate in partition as fully as if they were therein written, so that under a bond which, by its terms, only authorized such a commissioner to receive' the proceeds of the sale," he is held to the duty to pay the money arising from the sale to the persons entitled thereto, according to their respective shares, under the direction of the court; Coggeshall v. State, ex rel., 112-565. 1206. Vacancy - Successor's acts valid. The statute as to partition (§§ 11861209) does not expressly provide that if a commissioner appointed to sell lands shall die, resign, or be removed from his trust before the same has been fully executed, the proper court may appoint a successor to discharge the duties of such trust remaining to be discharged at the time of the vacancy, and may require of such successor a bond, conditioned for the faithful discharge of the duties of his trust. The statute, however, does contain this section, and nevertheless the want of express authority to appoint, and whatever may be its true construction as to the predecessorship of the successor, after the acceptance by the court of the resignation of a commis