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Seb-Sec. 258. If the plaintiff's title expire after the action is brought, but before its determination, the verdict and judg. ment shall be for damages and costs only.
Sub-Sec. 259. If the plaintiff prevail, the judgment shall be for the recovery of the possession, and for the damages and costs.
Sub-Sec. 260. Upon judgment for the recovery of posses. sion, a writ of possession shall be issued, and the sheriff shall deliver to the plaintiff the possession of the premises, and also collect the damages and costs, as on execution in other cases.
Sub-Sec. 261. If the judgment be for damages and costs, an execution shall issue as in a personal action.
Sub-Sec. 262. Hereafter in all actions of ejectment, which are now pending or which may hereafter be brought, when the defendant or tenant in possession in such suit shall have title of the premises in dispute either by grant from the Government of Spain, Mexico, or the United States, deed of conveyance founded on a grant or entry for the same, such defendant or defendants may file at the time of the filing of the pleas in said cause a notice to the plaintiff, that on the trial of said cause he or they will prove what improvements he or they may have made on the said lands in dispute and the value thereof. After which notice being filed, the said plaintiff may tile a notice within twenty days thereafter, to the said defendant or defendants or tenant in prossession, that in like manner he or they will prove the amount of the mesne profits of the said premises; Provided, That no improvements shall be taken into valuation and allowed for, that shall have been made after the execution of the original summons in such suit or after the plaintiff, his agent or attorney, shall have served said defendant or tenant in possession with a written notice that he or they claim title to the land, specifying in said notice the nature of the claim; nor shall any mesne profits be valued and recovered except such as may have accrued after the commencement of the suit or notice given as aforesaid.
Sub-Sec. 263. When the jury shall find a verdict for the plaintiff in such action, they shall also find the value of the improvements in favor of the defendant or tenant in possession, proved in the manner aforesaid, and further shall find the amount of the mesne profits proved to have accrued as aforesaid, as also the value of the land in its natural state without the improvements, and if the value of the improve. ments should exceed the amount of the mesne profits, the balance or overplus thereof shall be found by the jury in favor of the defendant or tenant in possession, and such plaintiff or
plaintiffs shall not have a writ of possession awarded or issued against the defendant or defendants until he or they shall have paid to the said defendant or defendants, their agent or attorney, the full amount of the balance or overplus, which the value of the improvements is found to exceed the mesne profits as aforesaid. And if the mesne profits as aforesaid shall exceed the value of the improvements as aforesaid, the jury aforesaid shall find the amount of such balance or overplus against the defendant or tenant in possession and judgment shall be entered up against said defendant or tenant in possession for such balance or overplus so found against them.
Sub-Sec. 264. If upon the rendition of any judgment in any such suit, the value of the improvements put upon the land by any defendant or tenant in possession as aforesaid shall exceed the net mesne profits of said land, the plaintiff or plaintiffs shall at the term of court at which said judgment is rendered, elect whether he will take his judgment and pay for the improvements so assessed against him or take pay from the defendant or defendants for the net profits and the value of the land in its natural state without the improvements, and if he elect to take pay for the net profits and the value of the land without the improvements as aforesaid, the said plaintiff or plaintiffs shall tender a warranty deed to the defendant or defendants for the said lands, upon the payment of its value as found by the jury in its natural state without the improvements, which payment shall be made to the plaintiff or plaintiffs in such reasonable term as the court may allow.
Sub-Sec. 265. The principles of the provisions of this Article shall apply and extend to all suits in equity when the object of the bill or answer is for the recovery of lands and tenements.
ARTICLE XV-PARTITION. Sub-Sec. 266. When any lands, tenements or hereditaments shall be owned in joint tenancy, tenancy in common, or co-parcenary, whether the right or titie be derived by donation, grant, purchase, devise or descent, it shall be lawful for any one or more persons interested, whether they be in possession or not, to present to the district court their petition in chancery, praying for a division and partition of such premises, according to the respective rights of the parties interested therein, and for a sale thereof, if it shall appear that partition cannot be made without great prejudice to the owners.
Sub-Sec. 267. Every person having an interest in the
premises, whether having possession or otherwise, or whether such interest be based upon the common source of title or otherwise, shall be made a party to such petition, and in cases where one or more of such parties shall be unknown, or the share or quantity of interest of any of the parties is unknown to the plaintiff, or when such shares or interest shall be uncertain or contingent, or when there may be any other impediment, so that such parties cannot be named, the same shall be so stated in the complaint.
Sub-Sec. 268. All persons interested in the lands, tenements or hereditaments of which partition is sought to be made, whose names are unknown, may be made parties to such partition by the name and description of unknown owners or proprietors of the premises, or as unknown heirs of any persons who may have been interested in the same.
Sub-Sec. 269. During the pendency of such suit or proceeding any person claiming to be interested in the premises may appear and answer the petition or complaint and assert his right by way of intervention, whether such interest be derived or claimed under the common source of title or otherwise, and the court shall decide upon their rights as though they had been made parties in the first instance.
Sub-Sec. 270. The court shall ascertain and declare the rights, titles and interests of all the parties to such proceed ings and render such decree as may be required by the rights of the said parties, which said decree shall be binding upon all of the said parties, whether they be adults or not.
Sub-Sec. 271. The court, when it shall decree a partition of any premises, shall appoint three commissioners not connected with any of the parties either by consanguinity or affinity and entirely disinterested; each of whom shall take an oath before some person authorized to administer the same, fairly and impartially to make partition of the said premises in accordance with the decree of the court as to the rights and interests of the parties, if the same can be done consistently with the interests of the estate, and the said commissioners shall go upon the premises and make partition of said lands, tenements and hereditaments, assigning to each party his share by metes and bounds, and shall make report in writing, under their hands, to the court, with all convenient speed, or within the time which may be prescribed by the court, and the court may upon the coming in and filing of such report make all such orders thereon as may be necessary to a final disposition of the case.
Sub-Sec. 272. When any lands, houses or lots are so circumstanced that a partition thereof cannot be made with. out manifest prejudice to the owners or proprietors of the same, and the commissioners appointed to partition the same shall so report to the court, the court shall thereupon make an order for the sale of such lands, houses and lots, in such manner and upon such terms, and by giving such notice of the sale as the court shall direct, and the person or persons who shall be appointed by such order to make sale thereof, shall make and execute good and sufficient conveyance or conveyances to the purchaser or purchasers thereof, which shall operate as an effectual bar both in law and equity against such owners and proprietors, parties to the proceedings, and all persons claiming under them; and the person or persons making such sale shall report their proceedings to the court and shall pay over the moneys arising therefrom to the parties entitled to receive the same under the direction of the court.
Sub-Sec. 272-A. No suit for a partition shall abate by the death of any tenant, but upon the death of any tenant being a party to said suit, the heirs or devisees of the said tenant may on motion be made parties in his stead.
ARTICLE XVI.-ACTIONS TO QUIET TITLE. Sub-Sec. 273. An action to determine and quiet the title of real property may be brought by any one having or claiming an interest wherein, whether in or out of possession of the same, against any person claiming title thereto.
Sub-Sec. 274. The plaintiff must tile his complaint in the district court, setting forth the nature and extent of his estate and describing the premises as accurately as may be, and averring that he is credibly informed and believes that the defendart makes some claim adverse to the estate of the plaintiff, and praying for the establishment of the plaintiff's estate against such adverse claims, and that the defendant be barred and forever estopped from having or claiming any right or title to the premises, adverse to the plaintiff, and plaintiff's title thereto be forever quieted and set at rest. Any or all persons whom the plaintiff alleges in his complaint he is informed and believes make claim adverse to the estate of plaintiff, the unknown heirs of any deceased person whom plaintiff alleges in his complaint in his lifetime made claim adverse to the estate of plaintiff, and all unknown persons who may claim any interest or title adverse to plaintiff, may be made parties defendant to said complaint by their names, as near as the same can be ascertained, such unknown heirs by the style of unknown heirs of such deceased person, and said unknown persons who may claim any interest or title adverse to the plaintiff by the name and style of unknown claimants of interests in the premises adverse to the plaintiff, and service of process on and notice of said suit against such defendants shall be made as in other cases in conformity with the provisions of this Code.
Sub-Sec. 275. If the defendant, or any of them, shall appear and disclaim all right and title adverse to the plaintiff, he shall recover his costs, and in all other cases the costs shall be in the discretion of the court. If the defendant or any one of them fails to appear and answer, the court may render decree against such defendant so failing to appear in accordance with the prayer of the bill of complaint, or such other decree in the premises as to the court shall appear meet and proper.
Sub Sec. 276. The action contemplated by this Article shall be conducted as other actions, by equitable proceedings under the rules of chancery.
Sub-Sec. 277. For the purposes of this Article and for all other purposes, mines shall be deemed and taken to be real estate. ARTICLE XVII.-ACTIONS CONCERNING DECE
DENT'S REAL ESTATE. Sub-Sec. 278. Whenever after inventory and appraisement therein as now provided by law, it shall appear that the personal estate of any decedent is insufficient to discharge the just debts allowed against his or her estate and the legacies charged thereon, resort may be had to the real estate, and the same may be sold, mortgaged, or leased by the executor or administrator in cases where power to that end is contained in the will, or otherwise upon the order of the court, as follows, to-wit:
Sub Sec. 279. The executor or adminisirator shall present to the district court of the county in which letters testamentary or of administration were issued, his petition setting forth the amount and value of the personal estate according to the inventory and appraisement thereof, and if sale has been made of such personal estate, the amount received from such sale, the amount of debts and claims allowed against the estate and the amount still existing and not allowed, so far as the same may be known, the amount of legacies if any, for the payment of which resort must be had to the real estate, and describing particularly the whole of the real estate whereof the decedent died seized,orin or to which he or she, at the time of his or her decease had any interest, claim or right, the nature of his or her claim, right or title, the nature and value of the several parcels of such real estate respectively, and if the same or any thereof is incumbered, the nature and amount of such incumbrance, and pray the