Measure of damages in certain cases under the last section. Damages in actions entry, etc., may be trebled. the amount of damages which may be assessed therefor, in a civil action, in any Court having jurisdiction. 734. (§ 252.) Nothing in the last section authorizes the recovery of more than the just value of the timber taken from uncultivated woodland for the repair of a public highway or bridge upon the land, or adjoining it. 735. (§ 253.) If a person recover damages for a for forcible forcible or unlawful entry in or upon, or detention of any building or any cultivated real property, judgment may be entered for three times the amount at which the actual damages are assessed. CHAPTER III. TO REAL ACTIONS TO DETERMINE CONFLICTING CLAIMS SECTION 738. Parties to an action to quiet title. 739. When plaintiff cannot recover costs. 740. If plaintiff's title terminates pending the suit, what he may recover, and how verdict and judgment to be. 741. When value of improvements can be allowed as a set-off. 742. An order may be made to allow a party to survey measure the land in dispute. and 743. Order, what to contain and how served. If unnecessary injury done, the party surveying to be liable therefor. 744. A mortgage must not be deemed a conveyance, what ever its terms. 745. When Court may grant injunction; during foreclosure; after sale on execution, before conveyance. 746. Damages may be recovered for injury to the possession after sale and before delivery of possession. 747. Action not to be prejudiced by alienation, pending suit. 748. Mining claims, actions concerning to be governed by local rules. 738. An action. may be brought by any person against another who claims an estate or interest in real property adverse to him, for the purpose of determining such adverse claim. Parties to an action to quiet title. plaintiff recover 739. (§ 255.) If the defendant in such action When disclaim in his answer any interest or estate in the cannot property, or suffer judgment to be taken against him costs. without answer, the plaintiff cannot recover costs. tiff's title pending the 740. (§ 256.) In an action for the recovery of real If plainproperty, where the plaintiff shows a right to recover terminates at the time the action was commenced, but it appears suit, what that his right has terminated during the pendency of and how the action, the verdict and judgment must be accord- judgment ing to the fact, and the plaintiff may recover damages for withholding the property. verdict and to be. value of improvebe allowed ments can as a set-off. 741. (§ 257.) When damages are claimed for When withholding the property recovered, upon which permanent improvements have been made by a defendant, or those under whom he claims, holding under color of title adversely to the claim of the plaintiff, in good faith, the value of such improvements must be allowed as a set-off against such damages. 742. (§ 258.) 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 shown, grant an order allowing to such party the right to enter upon the property and make survey and measurement 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. may be An order made to party to the land allow a survey and measure in dispute. Order, what to contain and how served. If unneces 743. (§ 259.) The order must describe the property, and a copy thereof must be served on the owner or occupant; and thereupon such party may enter upon done, the the property, with necessary surveyors and assistants, and make such survey and measurement; but if any unnecessary injury be done to the property he is liable therefor. party surveying to be liable therefor. A mortgage must not a convey 744. (§ 260.) A mortgage of real property shall be deemed not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale. ance, whatever its terms. When Court may grant injunction; 745. (§ 261.) The Court may, by injunction, on good cause shown, restrain the party in possession from during fore 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. closure; after sale on execu tion, before convey ance. Damages may be recovered for injury to the possession after sale, etc. Action not to be 746. (§ 262.) When real property has 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 property by the tenant in possession after sale, and before possession is delivered under the conveyance. 747. (§ 263.) An action for the recovery of real prejudiced property against a person in possession cannot be prealienation judiced by any alienation made by such person, either before or after the commencement of the action. pending suit. Mining claims, actions concerning to be governed by local rules. 748. (§ 621.) 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 State, must govern the decision of the action. CHAPTER IV. ACTIONS FOR THE PARTITION OF REAL PROPERTY. SECTION 752. Who may bring actions for partition. 753. Interests of all parties must be set forth in the com plaint. 754. Lienholders not of record need not be made parties. 755. Plaintiff must file notice of lis pendens. 756. Summons must be directed to all persons interested in the property. 757. Unknown parties may be served by publication. 758. Answer of defendants, what to contain. 759. The rights of all parties may be ascertained in the action. 760. Partial partition. 761. Lienholders must be made parties, or a referee be appointed to ascertain their rights. 762. Lienholders must be notified to appear before the referee appointed. 763. The Court may order a sale or partition and appoint referees therefor. 764. Partition must be made according to the rights of the 765. Referees must make a report of their proceedings. 767. Judgment not to affect tenants for years to the whole 768. Expenses of partition must be apportioned among the parties. 769. A lien on an undivided interest of any party is a 771. Application of proceeds of sale of incumbered prop erty. 772. Party holding other securities may be required first to exhaust them. 773. Proceeds of sale, disposition of. 774. When paid into Court the cause may be continued for 775. Sales by referees must be at public auction. Who may bring actions for partition. SECTION 778. Tenants whose estate has been sold shall receive com pensation. 779. The Court may fix such compensation. 780. The Court must protect tenants unknown. 781. The Court must ascertain and secure the value of future contingent or vested interests. 782. Terms of sale must be made known at the time. Lots must be sold separately. 783. Who may not be purchasers. 784. Referees must make a report of the sale to the Court. 787. Conveyances must be recorded, and will be a bar 788. Proceeds of sale belonging to parties unknown must be invested for their benefit. 789. Investment must be made in the name of the Clerk of the county. 790. When the interests of the parties are ascertained, securities must be taken in their names. 791. Duties of the Clerk making investments. 792. When unequal partition is ordered, compensation may be adjudged in certain cases. 793. The share of an infant may be paid to his guardian. 794. The guardian of an insane person may receive the pro ceeds of such party's interest. 795. A guardian may consent to partition without action, and execute releases. 796. Costs of partition a lien upon the shares of the par ceners. 797. The Court, by consent, may appoint a single referee. 798. Apportionment of counsel fees and expenses. 799. Abstract of title. 800. Same. 801. Interest on disbursements. 752. (§ 264.) 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 years, 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 such property, or a part thereof, if it appear that a partition cannot be made without great prejudice to the owners. |