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If it is shown that a party applying for a divorce is guilty of an act which would entitle the other party to a divorce, the applicant is not entitled to a divorce. Eikenbury v. Eikenbury, 33 App. 69.

1045. Adultery, when not granted.

If a party applying for a divorce is proven to have been guilty of adultery, such party is not entitled to a divorce for any other statutory cause. Eikenbury v. Eikenbury, 33 App. 69.

1048. Notice by publication, mailing copy.

The fact that the affidavit on which notice by publication is given in an action for divorce is made by the plaintiff in the action will not render the decree void for want of jurisdiction. Day v. Nottingham, 160 Ind. 408.

[Acts 1903, p. 393. In force March 9, 1903.]

1050a. Notice to prosecutor, defense.-1. That whenever a petition. for the granting of a divorce shall be filed in any of the circuit or superior courts of this state, and the time fixed in the summons issued on said petition for the return thereof has expired, and there is no bona fide appearance of counsel for defendant entered in the appearance docket of said courts for the purpose of making a good faith defense, in the opinion of said courts, it shall be the duty of the judges of said courts to notify the prosecuting attorney of the judicial district where said courts are situated to enter his name upon the appearance docket where said cause is docketed, and he shall resist and defend said petition on behalf of and in the name of the State of Indiana.

This act amends section 1 of the act of 1901, being section 1050a, Burns' R. S. 1901.

1054. Interlocutory orders, expenses of wife.

In making an allowance to a wife for expenses in a divorce suit, such allowance may include the attorney fees of the wife's attorney. De Ruiter v. De Ruiter, 28 App. 9.

The action of the court in making an allowance to a wife in an action for divorce can not be reviewed by assigning such action as a cause for a new trial. Stewart v. Stewart, 28 App. 378.

1057. Alimony, amount.

The amount of alimony that should be allowed in decreeing a divorce is largely within the discretion of the trial court, but such action may be reviewed on appeal. Stutsman v. Stutsman, 30 App. 645.

In awarding alimony the court may take into consideration the amount of the estate of each of the parties and the ability of the husband to earn money. Stutsman v. Stutsman, 30 App. 645.

If an appeal is taken from a judgment allowing alimony and the defendant remarries, the appeal will be dismissed. Rariden v. Rariden, 33 App. 284.

1058. Custody of children.

On decreeing a divorce it is the duty of the court to make provision for the guardianship, custody, support, and education of the minor children of the parties. Stone v. Stone, 158 Ind. 628.

Courts have power to modify decrees in divorce cases with respect to the minor children of the parties without there being a reservation in such decrees conferring such power. Stone v. Stone, 158 Ind. 628; Tobin v. Tobin, 29 App. 382. A decree of divorce may be so modified after its rendition as to require a father to contribute to the support of minor children although no such provision was contained in the original decree. Tobin v. Tobin, 29 App. 382.

A judgment in a habeas corpus proceeding awarding the custody of a minor child to one of its parents, does not preclude a court on subsequently decreeing a divorce of such parents from determining as to the custody of such child. Everitt v. Everitt, 29 App. 508.

A decree in a divorce case requiring the father of minor children to contribute to their support such sums as the court may from time to time direct, does not become a lien on the land of such father. Matthews v. Wilson, 31 App. 90.

[Acts 1903, p. 39. In force February 21, 1903.]

1058a. Children sent to orphans' home.-1. That all judges of the circuit and superior courts of the State of Indiana shall have the power and authority in any and all divorce cases to take minor children, under the age of sixteen years, from the parents of such children, and place them in the Orphans' Home of the county where such divorce suit originated, when in the judgment of the judge trying said cause the parents of any such child or children are unable financially or are for any reason unfit persons to have their care, custody and education.

1058b. Decree to specify.-2. The disposition of any such children shall be specified and recited in the decree of the court trying any such


1058c. Copy of decree authority.-3. A certified copy of any such decree shall be sufficient warranty and authority to admit any such child or children into such Orphans' Home, as provided in this act, and upon presentation of any such child or children with a certified copy of said decree, the matron, or person or persons in charge of any such home, shall admit any such child or children and provide and care for them in the same manner as provided by law for other inmates of such home.

1059. Decree for alimony, payment.

A court on decreeing a divorce has no authority to require the husband to pay to the wife a specified sum weekly until the further order of the court as alimony. Marsh v. Marsh, 162 Ind. 210.

The payment of a judgment for alimony can not be enforced by contempt proceedings. Marsh v. Marsh, 162 Ind. 210.


[Acts 1903, p. 114. In force April 23, 1903.]

Separation from bed and board.-1. That a separation from bed and board for a limited time may be decreed by the superior and circuit courts of this state for the following reasons:

(a) Adultery, if it is not the result of connivance or consent of the parties, and plaintiff is not guilty of the same offense.

(b) Desertion, or where the wife is plaintiff, neglect or refusal to suitably provide for her, covering a period of six months.

(c) Habitual cruelty of one party towards the other or such constant strifes of both parties as render their living together intolerable.

(d) Habitual drunkenness of either party, or the confirmed excessive use of morphine, cocaine or any other drug.

(e) Gross and wanton neglect of conjugal duty of either party, covering a period of six months.

1061b. Alimony, sale of property, children.-2. Upon decreeing a temporary separation, the court may grant alimony and make such further decrees, as it shall deem just and expedient, concerning the estate, and maintenance of the parties, or either of them. The court may decree that the guilty party shall temporarily forfeit all right to participate in the property, and income of the other, and it may authorize the sale of property belonging to either party, without the other party joining in the conveyance: Provided, That the rights of either party in the property so sold shall not be less than the rights now provided by law where sales are made on execution. As regards the custody, care and maintenance of the children in such family, the court can make provisions as justice and expediency require. From time to time afterwards, on the petition of either party, the court may revise and alter such decrees regarding property, and income, and concerning the care, custody and maintenance of the children, as the altered circumstances of the parents and the benefit of the children may require.

1061c. No repeal, divorce, adultery.-3. This act is not intended to and shall not repeal or affect any existing law as to granting absolute divorces, and the obtaining of a temporary separation under this law shall not be a bar to the entering of a suit for absolute divorce by either party. Where the party obtaining the temporary separation commits adultery he or she shall at once forfeit all benefits and rights given to him or her and still enjoyed by him or her under the obtained decree of separation.

1061d. Residence, proof, practice.-4. In granting a separation from bed and board for a limited time, the same length of residence and proof thereof, and the practice and proceedings of the court shall be the same as in cases of absolute divorce.

1061e. Cohabitation, penalty.-5. If any parties who have been granted a separation from bed and board for a limited time, shall cohabit together during the time for which they are so separated, they or either of them shall be guilty of a misdemeanor and may be fined in any sum not exceeding fifty dollars, to which may be added imprisonment in the county jail for a period not exceeding six months.

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In actions of ejectment and to quiet title the defendant may prove all defenses whether legal or equitable under the general denial. Kaufman v. Preston, 158 Ind. 361; Allen v. Indianapolis Oil Co., 27 App. 158; Beasey v. High, 33 App. 689.

1070. Use of premises, recovery.

An action may be maintained to recover the rents and profits of land after a surrender of possession thereof during the time of the wrongful holding by the defendant. Huncheon v. Long, 25 App. 530.

1076. New trial of right, bond.

To entitle a party to a new trial as of right a bond must be filed as required by statute to the approval of the court or clerk. Carpenter v. Willard Library, 26 App. 619.

When a new trial as of right may be demanded and the statute is complied with, the court has no discretion but must grant a new trial. Tomlinson v. Tomlinson, 162 Ind. 530.

In a suit to cancel a deed and to reinvest the title to land in the grantor a new trial as of right may be demanded. Tomlinson v. Tomlinson, 162 Ind. 530.

In an action for partition where the title to land is only incidentally involved a new trial as of right can not be demanded. Fordice v. Lloyd, 27 App. 414.

If two causes of action are joined, in one of which a new trial as of right might be demanded and in the other not, and judgment is rendered, a new trial without cause can not be demanded. Schlichter v. Taylor, 31 App. 164.

Parties may lose their right to have an order granting a new trial as of right set aside by not applying to have such order set aside at the earliest opportunity. Barber v. Barber, 156 Ind. 45.

1082. Action to quiet title.

The principle upon which actions to quiet title are based are in a large measure of equitable origin, but the proceeding as it now exists is essentially the creature of legislative enactment. Seymour Water Co. v. City of Seymour, 163 Ind. 120.

A complaint to quiet title to land must show title to the land in the plaintiff. Dodds v. Winslow, 26 App. 652.

A complaint to quiet title is sufficient which alleges ownership in the plaintiff and that the defendant is making unfounded claims to an interest in the land which is adverse to the title of the plaintiff. Rennert v. Shirk, 163 Ind. 542; City of Huntington v. Townsend, 29 App. 269.

A complaint to quiet title to land must give a definite description of the land. Jones v. Mount, 30 App. 59.

All defenses whether legal or equitable may be proven under the general denial in actions to quiet title. Kaufman v. Preston, 158 Ind. 361; Allen v. Indianapolis Oil Co. 27 App. 158; Beasey v. High, 33 App. 689.

1085. Recording proceedings.

Failure of the clerk to cause a copy of a decree quieting title to land to be recorded in the recorder's office does not affect the force of such decree as an adjudication of title. Skelton v. Sharp, 161 Ind. 383.

1086. Real party in interest to sue.

If lands conveyed are in the possession of a tenant, the grantee must sue to recover possession although the grantor agreed to deliver possession at the end of the tenancy and the tenant was to remain the tenant of the grantor. Holliday v. Chism, 25 App. 1.

1087. Occupying claimant.

The owner of a determinable fee in land is not an occupying claimant, and can not recover for improvements made on the land during occupancy thereof. Pulse v. Osborn, 30 App. 631.

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1105. Refusal to satisfy mortgage, penalty.

The act of 1893, section 1105, Burns' R. S. 1901, providing for the recovery of a penalty for a refusal to satisfy a mortgage on demand, is constitutional. Judy v. Thompson, 156 Ind. 533.

The act of 1893, prior to its amendment in 1901, providing for the recovery of a penalty for refusing to satisfy a mortgage did not apply to corporations. Studabaker Mfg. Co. v. Morden, 159 Ind. 173.

If by mistake in recording a mortgage the debt secured is stated to be less than the amount named in the mortagage, a subsequent purchaser of the land on payment of the sum named in the record is entitled to have the mortgage released, but he can not recover a penalty and attorney fees from the mortgagee for refusing to release the mortgage. Osborn v. Hocker, 160 Ind. 1.

1107. Assignment of mortgages.

If the assignment of a mortgage is duly recorded and the assignee afterwards becomes the owner of the land and conveys the same to an innocent purchaser, such purchaser will hold the land free of any lien in favor of assignees of the mortgage notes when such assignments are not recorded. Artz v. Yeager, 30 App. 677.

1107a. Assignments in writing.

The assignment of a note secured by mortgage carries with it the mortgage, but it is not an assignment of the mortgage within the meaning of the statute requiring the assignments of mortgages to be in writing and to be recorded. Perry v. Fisher, 30 App. 261.

1109. Foreclosing mortgage.

A mortgage may be foreclosed on default of payment of annual interest without a provision in the mortgage to that effect. Perry v. Fisher, 30 App. 261.

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