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title claimed or asserted, the party instituting and prosecuting such proceedings, when he does not have knowledge as to whether the person or persons who by any possibility might claim some right, title or interest in the lands mentioned and described in such proceedings are living or dead and when he does not have knowledge as to the full names of persons, who by possibility might claim some right, title or interest in the lands mentioned and described in such proceedings, whether as husband or wife, widower or widow, heir or devisee, by reason of their relations to some former owner, mortgagee or encumbrancer thereof as disclosed by the public records of said county or elsewhere or as to whether such parties are living or dead, may make defendants to such proceedings, any and all persons, who might have some possible interest in such lands, and whose name or names appear of record in any records affecting said real estate and may also make defendants to such proceedings the husband or wife, widower or widow, heirs or devisees of any and all such persons appearing of record as a former owner or encumbrancer, under the designation and description of the unknown husband or wife, widower or widow, or the unknown heirs or devisees of any such person shown by the public records of the county in which such lands are situated, at any time in the past to have had any interest in said lands by reason whereof doubt as to the validity of the title to said lands may arise. And in any such proceeding for the purposes hereinbefore mentioned, the plaintiff or the first mover therein, may in his complaint or other initial proceeding state that he asserts title to the same against any and all persons whomsoever, and that his purpose in such proceeding is to quiet the title to said lands as against the world, and that he has named as defendants, all persons within his knowledge, through whom any hostile claim might be asserted. But in any such case an affidavit shall be filed with the complaint or other initial pleading for and on behalf of the plaintiff therein, stating that the names of all persons, disclosed by the public records of the county, by, under and through whom some claim or title or interest in said land might possibly be asserted have been set forth in the complaint; that the plaintiff does not know whether the persons so named are living or dead or their legal residence; whether they are married or not; and that he does not know the name or whereabouts of the husband or wife or widower or widow of such person as the case may be, if in fact there were such husband or wife or widower or widow; and that if such person be dead leaving heirs or devisees of said lands, the plaintiff does not know their names or legal residence; and that such plaintiff or other first mover in such proceedings, claims full and complete right and title to the real estate described in said complaint or other initial pleading and to the interest asserted as against any and all persons whatsoever, and that

it is the purpose of such plaintiff or other first mover in such proceedings to quiet his title to such real estate as against the world.

Upon the filing of such complaint and affidavit, and also upon filing of an affidavit for publication of notice as now required by law, the clerk shall publish notice of the filing and pendency of such suit and when the same will be called for action, as is now required by law in suits for the foreclosure of mortgages upon lands, in which publication, the defendants who are named as the unknown husband or wife, or widow or widower or as the unknown heirs or devisees, shall be thus designated and described; and it shall be stated that the suit or proceeding is prosecuted to quiet the title to the lands therein mentioned and described, as against all demands, claims and claimants whatsoever; which lands shall be fully described in said publication of notice of the pendency of such action.

When such complaint or other initial proceeding shall have been filed, and proof of such publication or publications shall have been made to the court, after the expiration of thirty days from the last publication of such notice, the court in which proceeding is pending, shall have full power, authority and jurisdiction to hear and determine all matters presented in such suit or proceeding with the same force and effect, as if the full names of all the parties and possible claimants have been known and had been sued as parties defendant by their proper names, and all decrees, orders, judgments and proceedings had with respect to the title of such lands shall be binding and conclusive upon all persons whomsoever, and such proceeding shall be taken as a proceeding in rem as against said lands.

If the lands affected are situate in more than one county the proceeding may be begun in any county wherein any such land is located and only one complaint shall be necessary, but publication shall be had and made in each such county, which publication shall set out the description of the land in that county and shall recite that it further affects land in other counties, naming such counties, and when the decree is entered in the court of the county trying said cause, a duly certified copy thereof shall be filed in the office of the recorder of each other county wherein any such land is located, within three months after such decree is so entered.

This section was numbered 1116a in the Supplement of 1918.

1116c. Act supplemental.-2. Nothing in this act shall be taken to contravene or repeal any other law in this state concerning the titles to real estate or suits or actions affecting the same, but this act shall be supplemental and additional to existing laws.

This section was numbered 1116b in the Supplement of 1918.

141

EJECTMENT-COMPLAINT, PUBLICATION OF NOTICE. § 1116d

[Acts 1915, p. 454. In force April 26, 1915.]

1116d. Absent heir, quieting title to interest in land.-1. That any nonresident of the State of Indiana, who, if alive, would be entitled to take and to own real estate in this state by descent or devise, and who shall have absented, or who shall absent himself or herself from his or her last place of residence in any other state or county for seven years and who shall not have been, or not be, heard from for the same. period of time by his or her wife, husband, parents, children, brothers, or sisters, or some of them, shall be presumed to be dead; and the real estate which he or she otherwise would have taken, or would take, shall descend from him or her to his or her heirs under the laws of descent of this state, or from any deceased person from whom he or she would have inherited, or would inherit, if alive, to those who would inherit if he or she were, in fact, dead, and the title to any such real estate shall vest in said heirs upon full compliance with the provisions of section two of this act, and under the conditions therein stated. This section was numbered 1116c in the Supplement of 1918.

1116e. Complaint, publication of notice.-2. Any person who shall claim any real estate under section 1 of this act may file his or her verified complaint in either the circuit or superior court of the county in which the real estate is situated, to which the nonresident and unheard from person shall be made the defendant, and which shall contain a particular description of the real estate claimed and a statement of the facts required by section 1 above. Thereupon five weeks' notice shall be given to the defendant of the pendency of said action, concluding thirty (30) days before the time fixed by the court or by indorsement on the complaint for the hearing thereon. This notice shall be published in a daily or weekly newspaper of general circulation printed and published in the county where the real estate is situated, or if there be no such newspaper in such county seat, then in some such newspaper published in such county and in either case, also in a newspaper of general circulation printed and published at the county seat of the county in which the defendant had his last known place of residence, if such newspaper be published at said county seat; if not, then by publishing the notice in like newspaper printed and published in the county seat nearest to such last place of residence. The affidavits of the publishers of the newspapers in which the notice may be published, with a printed copy of the notice as published attached thereto, shall be prima facie proof of the publication of the notice as required by this section. Upon the day fixed in the notice, or thereafter when convenient, the court shall hear said complaint and if, upon the evidence, the court finds that notice has been given as herein required and that the facts alleged in the complaint as required by this

act are true, it shall enter judgment quieting the title to the real estate in the plaintiff. This judgment shall become and be absolute at the end of three years from the date of its rendition unless, within that time, the defendant shall appear and move to have the same vacated.

This section was numbered 1116d in the Supplement of 1918.

[Acts 1915, p. 556. In force March 9, 1915.]

1119b. Complete record, costs, liability of clerks.-1. That all proceedings and judgments where the title of land is involved, in which complete records have not been made and in which the costs of such complete records have not been paid, be and the same are hereby legalized and made valid, and that the clerks of said circuit courts in the State of Indiana be and they are hereby relieved and discharged from any and all liability to account for the costs of such complete records in all such cases in which such record has not been made and in which the costs and fees for such complete record have not been paid, and that such clerks shall be liable for such costs only in cases where the same actually have been paid: Provided, however, That unless requested it shall not be necessary for the clerk to make a complete record of the proceedings in actions to quiet title, and that a record of the judgment in such cases, when properly recorded in the office of the county recorder, shall be sufficient.

1121. Occupying claimant, improvements.

When an occupying claimant of land makes a claim in an action of ejectment for improvements made on the land, he has the burden of proof to show that the improvements were made in good faith. Jose v. Hunter, 60 App. 569, 103 N. E. 392, 852.

The general rule is that a bona fide occupying claimant of lands is entitled to recover for improvement in the amount which he enhances the value of the property to the owner. Thompson v. Illinois Cent. R. Co., App. 129 N. E. 55. 1127.

Color of title.

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By enumerating and specifying in the act what shall constitute color of title all else is excluded and the public welfare being involved the courts will not subtract from the legislative definition. Philbin v. Carr, App. 129 N. E. 19.

1128. What is color of title.

See note to section 1127.

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A mortgagee's satisfaction subsequent to an unrecorded assignment is valid

as against innocent purchasers. Goldenson v. Lieberman, App.

161.

1150. Foreclosure, parties, effect of sale, redemption.

127 N. E.

Purchaser of note secured by mortgage, foreclosure, parties to action, when must take notice of recorded instruments, and when instruments recorded in improper record are not constructive notice of their contents. Sinclair v. Gunzenhauser, 179 Ind. 78, 98 N. E. 37, 100 N. E. 376.

1151. Foreclosure and sale.

The statutes providing for the foreclosure of mortgages and directing who shall make a sale of the property, apply to mortgages on land, and do not apply to mortgages of personal property, and when a mortgage on chattels is foreclosed the court may direct who shall make the sale. Leader Pub. Co. v. Grand Trust etc. Co., 182 Ind. 651, 108 N. E. 121.

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If a husband and wife purchase land and a deed is executed to them jointly, and they execute a mortgage to secure the payment of the purchase money, and the mortgage contains an express agreement to pay the debt, a personal judgment may be rendered against both husband and wife on the foreclosure of the mortgage. Kelley v. York, 183 Ind. 628, 109 N. E. 772.

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Under this section and section 1165, parents, application for a writ of habeas corpus to enforce rights for the protection of infants must show that they are entitled to such remedy. McDonald v. Short, Ind. 125 N. E. 451.

1165. Complaint and proceedings.

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Fugitives from justice, complaint and extent of inquiry that may be made by courts under an application for a writ of habeas corpus made by a person who is arrested as a fugitive from justice. Worth v. Wheatley, 183 Ind. 598, 108 N. E. 958.

See note to section 1164.

1176. Judgment, etc., when not questioned.

See note to section 9926h.

SEC.

ARTICLE 41.-INFORMATIONS.

SEC.

1189. By whom informations may be 1190. Of what to consist. filed.

1189. By whom informations may be filed.

Informations can not be filed by the attorney-general of the state to have the franchises of corporations declared forfeited, such informations should be filed by prosecuting attorneys. State ex rel. v. Home Brewing Co., 182 Ind. 75, 105 N. E.

909.

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