Action to deinterest in

termine an

real estate.

CHAPTER III.-Actions Concerning Real Estate. SEC. 354. An action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate, or interest.

SEC. 355. If the defendant in such action disclaim When plain in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff shall not recover costs.

tiff not to recover costs.

Judgment in

case plain

tiff's title ter

minate during suit.

When value

of improve

ments

al

lowed as set

off.

SEC. 356. In an action for the recovery of real property where the plaintiff shows the right to recover at the time the action was commenced, but it appears that his right has terminated during the pendency of the action, the verdict and judgment shall be according to the fact, and the plaintiff may recover damages for withholding the property.

SEC. 357. When damages are claimed for withholding the property recovered, upon which permanent improvements have been made by a defendant, or those under whom he claims, holding under cover of title adversely to the claims of the plaintiff, in good faith, the value of such improvements shall be allowed as a set-off against such damages.

The court in which an action is pending for the recovery of real property or for damages for an injury thereto, or a judge thereof, or a county judge, may, on motion, upon notice by either party, for good cause Court may shown, grant an order allowing to such party the right to enter upon the property and make and survey urement thereof, and of any tunnels, shafts, or drifts thereon, for the purpose of the action, even though entry for such purpose has to be made through other lands belonging to parties to the action.

allow survey

of real estate in action.

Order for the survey.

meas

SEC. 358. The order shall describe the property, and a copy thereof shall be served on the owner or occupant; and thereupon such party may enter upon the property,

with necessary surveyors and assistants, and may make such survey and measurement; but if any unnecessary injury be done to the property he shall be liable therefor.

SEC. 359. A mortgage of real property shall not be deemed a conveyance, whatever its term, so as to enable the owner of the mortgage to recover possession of the real property without foreclosure and sale.

SEC. 360. The court may, by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of real property during the foreclosure of a mortgage thereon, or after a sale on execution, before a conveyance.

Purchaser may recover

SEC. 361. When real property shall have been sold on execution, the purchaser thereof, or any person who may have succeeded to his interest, may, after his estate becomes absolute, recover damages for injury to the damages for property by the tenant in possession, after a sale and before possession is delivered under the conveyance.

injury done.

SEC. 362. An action for the recovery of real property against a person in possession cannot be prejudiced Alienation by any alienation made by such person, either before or after the commencement of the action.

SEC. 363. In actions respecting mining claims, proof must be admitted of the customs, usages, or regulations established and in force at the bar or diggings embracing such claim; and such customs, usages, or regulations, when not in conflict with the laws of this territory, must govern the decision of the action.

CHAPTER IV.- Actions for the Partition of Real

Property.

SEC. 364. When several co-tenants hold and are in possession of real property as parceners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for an action may be brought by one or more of such persons for a partition thereof, according to the respective rights of the persons interested therein, and for a sale of

years,

not to prejudice right of claimant.

What proof

admitted in cerning min

actions con

ing claims.

Who entitled to bring actions for partition.

Interests

of

all parties set forth in complaint.

Who need not

such property or a part thereof, if it appear that a partition cannot be made without great prejudice to the

owners.

SEC. 365. The interest of all such persons in the property, whether such persons be known or unknown, shall be set forth in the complaint specifically and particularly, as far as known to the plaintiff, and if one or more of the parties, or the share, or quantity of interest of any of the parties, be unknown to the plaintiff, or be uncertain or contingent, or the ownership of the inheritance depend upon executory devise, or the remainder be a contingent remainder, so that such parties cannot be named, that fact shall be set forth in the complaint.

SEC. 366. No person having a conveyance of, or claiming a lien on, the property, or some part of it, need be made par- be made a party to the action, unless such conveyance or lien appear of record.

ties.

Notice of pendency to be filed.

To whom

rected.

SEC. 367. Immediately after filing the complaint in the district court, the plaintiff shall file with the recorder of the county, or of the several counties, in which the property is situated, either a copy of such complaint or a notice of the pendency of the action, containing the names of the parties so far as known, the object of the action, and a description of the property to be affected thereby. From the time of the filing it shall be deemed notice to all persons.

SEC. 368. The summons shall be directed to all the joint tenants and tenants in common, and all persons having an interest in, or any liens of record by mortgage, judg

summons di- ment, or otherwise, upon the property, or upon any particular portion thereof; and, generally, to all persons unknown who have or claim any interest in the property.

SEC. 369. If a party having a share or interest is unknown, or any one of the known parties reside out of Unknown the territory, or cannot be found therein, and such fact parties served by publica is made to appear by affidavit, the summons may be tion. served on such absent or unknown party by publication, as in other cases. When publication is made, the sum

mons, as published, shall be accompanied by a brief description of the property which is the subject of the action.

SEC. 370. The defendants who have been personally served with the summons and a copy of the complaint, or who shall have appeared without such service, shall set forth in their answers, fully and particularly, the origin, nature, and extent of their respective interests in the property; and if such defendants claim a lien on the property by mortgage, judgment, or otherwise, they shall Answer of correctly state the original amount and date of the same, and the true sum remaining due thereon; also, whether the same has been secured in any other way or not, and, if secured, the nature and extent of such security, or they shall be deemed to have waived their right to such lien.

SEC. 371. The rights of the several parties, plaintiffs as well as defendants, may be put in issue, tried, and determined by such action; and when a sale of the premises is necessary the title shall be ascertained by proof to the satisfaction of the court, before the judgment of sale shall be made, and where service of the complaint has been made by publication, like proof shall be required of the right of absent or unknown parties before such judgment is rendered, except that where there are several unknown persons having an interest in the property their rights may be considered together in the action, and not as between themselves.

defendant.

Rights of defendants mined in the

plaintiffs and

may be deter

action.

Incomplete

SEC. 372. Whenever, from any cause, it shall become, in the opinion of the court, impracticable or highly inconvenient to make a complete partition, in the first instance, among all the parties in interest, it shall be lawful for the court to first ascertain and determine the shares or interest respectively held by the original co- partition may tenants, and thereupon to adjudge and cause a partition to be made, as if such original co-tenants were the parties and sole parties in interest, and the only parties to the action, and therefore proceed in like manner to adjudge

be made.

and make partition separately of each share or partition so ascertained and allotted, as between those claiming under the original tenant to whom the same shall have been so set apart, or allow them to remain tenants in common thereof, as they may desire.

SEC. 373. If it shall appear to the court by the certificate of the county recorder, or county clerk, or by the sworn or verified statement of any person who may have examined or searched the records, that there are outstanding liens or incumbrances of record upon such real property, or any part or portion thereof, which issued and were of record at the time of commencement of said action, and the persons holding such leins are not made parties to the action, the court shall either order such persons to be made parties to the action by an amendment or supplemental complaint, or appoint a referee to ascertain whether or not such liens or incumbrances have been paid, or, if not paid, what amount remains due thereon, and their order among the liens or incumbrances severally held by the said persons and the parties to said action, and whether the amount remaining due thereon has been secured in any manner, and if secured, the nature and extent of the security.

SEC. 374. The plaintiff shall cause a notice to be served a reasonable time previous to the day for appearance before the referee appointed, as provided in the last section, on each person having outstanding liens of record who is not a party to the action, to appear before the referee at a specified time and place, to make proof by his own affidavit or otherwise of the true amount due, or to become due, contingently or absolutely thereon. In case such person be absent or his residence be unknown, service may be made by publication, or notice to his agents, under the direction of the court, in such manner as may be proper. The report of the referee thereon shall be made to the court, and shall be confirmed, modified, or set aside, and a new reference ordered, as the justice of the case may require.