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CHAPTER XXIII.

EJECTMENT.

Sec. 984. PARTIES.— Every action of ejectment shall be brought in the name of the real claimant and may be brought against the person actually occupying the premises claimed, either in person or by tenant, or against both the claimant and his tenant, or other occupant claiming under him, or, if they be not actually occupied, against some person exercising acts of ownership thereon adversely to the plaintiff. If a lessee be made a defendant at the suit of a party claiming against the title of his landlord such landlord may appear and be made a party defendant in the place of his lessee. And any person claiming to be in possession may, on motion, be admitted to defend the action.

Sec. 985. FORM OF DECLARATION.—The plaintiff in his declaration must describe the premises claimed with reasonable certainty, and set forth distinctly the nature and quantity of the estate claimed by him in the same, and it shall be sufficient for him to state in addition thereto that the plaintiff was possessed of the premises, and while he was so possessed the defendant entered wrongfully into possession of the same and withholds the possession thereof from the plaintiff, or wrongfully detains such possession, or that the defendant is wrongfully exercising acts of ownership thereon. Such acts of ownership, however, unaccompanied with possession shall not, except as hereinafter provided, be held to amount to an adversary possession, so as to make it necessary for the plaintiff to sue in order to avoid the bar of the statute of limitations.

Sec. 986. CountS.— The declaration may contain several counts and several parties may be named as plaintiffs, jointly in one count and separately in others.

[Sec. 987. PLEADING.–The defendant may demur or may plead the general issue of not guilty,” which shall put in issue the plaintiff's title and right to the possession and under which all matters of defense may be given in evidence.]

Sec. 988. EVIDENCE.—It shall be sufficient to entitle the plaintiff to a verdict to show that he is entitled, as against the defendant, to the immediate possession of the premises claimed and that the defendant is in possession thereof, holding adversely to the plaintiff, or is exercising acts of ownership over the same adversely to the plaintiff; except that in an action by one or more joint tenants or tenants in common against their cotenants, the plaintiffs shall be required to prove an actual ouster or some other act amounting to a denial of the plaintiff's title and his exclusion from the enjoyment of the property.

Sec. 989. OUTSTANDING LEGAL TITLE.—It shall be no bar to the plaintiff's recovery that the legal title to the property claimed is outstanding in another as mortgagee or trustee under a mortgage or deed of trust to secure a debt unless such mortgagee or trustee, or those claiming under him, bas taken possession of the premises; or unless the defendant claims under such mortgagor or grantor in the deed of trust.

[Sec. 989. OUTSTANDING LEGAL TITLE.—It shall be no bar to the plaintiff's recovery that the legal title to the property claimed is outstanding in another as mortgagee or trustee, if the mortgage or deed of trust has been satisfied and the plaintiff would be entitled to an unconditional decree for the release or reconveyance of the property to him, nor shall the mortgagee or trustee in such case be entitled to maintain an action of ejectment against the party so entitled.]

Sec. 990. Where real property has been sold under a written contract executed by the vendor, and there has been such a performance of its terms by the vendee as would entitle him to a decree in equity for a conveyance of the legal title, without condition, such vendor shall not be entitled at law, any more than in equity, to recover said property from the vendee.

[Sec. 991. MORTGAGOR.—Wherever, by the terms of a mortgage or deed of trust, the debtor is entitled to retain possession of the property conveyed until default in the payment of the debts secured, said mortgage or deed of trust shall be no bar to the recovery of possession of the property in ejectment, before such default, by the mortgagor or grantor, against either the mortgagee or trustee or a stranger.]

Sec. 992. SEVERAL JUDGMENTS AGAINST DEFENDANTS.—If it appears on the trial that some of the defendants occupy distinct parcels of the property claimed, in severalty, the plaintiff, if entitled to recover, may, in the discretion of the court, have several judgments against the respective parties, according to the proof of occupancy.

Sec. 993. RECOVERY OF LESS THAN IS CLAIMED.—The plaintiff, under a claim to certain described premises, may recover less than the whole property claimed, and, under a claim to an entire property, may recover an undivided part thereof.

Sec. 994. JOINT TENANTS AND TENANTS IN COMMON.-Joint tenants must sue jointly in ejectment, but tenants in common may sue either jointly or separately, and any numbers of tenants in common, less than the whole number entitled, may sue jointly in reference to their undivided interests.

Sec. 995. MESNE PROFITS AND DAMAGES. - The plaintiff may embody in his declaration, in a separate count, a claim for the mesne profits received by the defendant from the property sued for or for the clear value of the use and occupation thereof extending to the time of the verdict, and also damages for waste or injury to the premises during said period; and if the jury find for the plaintiff they may, at the same time, find and assess the said mesne protits, or the value of said use and occupation and the amount of said damages; and, besides a judgment for the recovery of the property, there shall be rendered a judgment against the defendant for the amount so found by the jury, except in the case provided for in section ten hundred and three hereafter. - Act of June 30, 1902.

[Sec. 995. MESNE PROFITS AND DAMAGES.—The plaintiff may embody in his declaration, in a separate count, a claim for the mesne profits received by the defendant from the property sued for or for the clear value of the use and occupation thereof to the defendant during his occupation thereof, and during the plaintiff's ownership thereof, within a period commencing three years before the commencement of the suit and extending to the time of the verdict, and also damages for waste or injury to the premises during said period; and if the jury find for the plaintiff they may, at the same time, find and assess the said mesne profits, or the value of said use and occupation and the amount of said damages and, besides a judgment for the recovery

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of the property, there shall be rendered a judgment against the defendant for the amount so found by the jury, except in the case provided for in section ten hundred and three hereafter.]

Sec. 996. LANDLORD AND TENANT.—If the action be by a landlord against his tenant, the plaintiff may embody in his declaration, in separate counts, a claim for furniture if leased with the realty, for arrears of rent due at the termination of the tenancy, a claim for double rent in cases authorized by this code from the termination of the tenancy to the verdict for possession, and a claim for damages for waste or injury to the premises or furniture during the defendant's occupancy of the same and before the commencement of the suit; and if the jury find for the plaintiff, they may at the same time find the amounts due for arrears of rent and for double rent and for damages as aforesaid, and judgment shall be rendered accordingly.

Sec. 997. PLAINTIFF MAY SUE SEPARATELY FOR RENT OR DAMAGES. The plaintiff in ejectment shall not be bound to join his claim for rent or damages with his claim for the recovery of the land, and his omission to do so shall not prevent him from suing for the same separately.

Sec. 998. EXPIRATION OF TITLE PENDING SUIT.-If the title of the plaintiff in ejectment shall expire after the commencement of the suit but before the trial, and but for said expiration he would have been entitled to recover, the verdict shall find such facts, and the plaintiff shall be entitled to recover his damages sustained by the wrongful withholding of the possession.

Sec. 999. ADVERSE POSSESSION. In an action to recover vacant and unimproved lots of ground it shall not be necessary, in order to maintain the defense of adversary possession, to show that the premises in controversy had been inclosed; but if it appear that the property had been assessed for taxation to the defendant, or those under whom he claims, and that he or they had regularly paid the taxes on the same and were the only persons who had exercised control over the same for a period of fifteen years before the bringing of the action, such facts shall be the equivalent of possession by actual inclosure.

Sec. 1000. VERDICT.-If the plaintiff's title be established by proof, the verdict of the jury shall be generally for the plaintiff as to the whole or part of the property or interest claimed in the declaration, as the case may be; if, on the contrary, the plaintiff fail to make satisfactory proof of title, the verdict shall be for the defendant as to the whole or part of the property, as the case may be, and it may be for the plaintiff as to part and for the defendant as to other part thereof, and judgment shall be rendered according to the verdict, except as hereinafter provided.

Sec. 1001. If it appear on the trial that the defendant did not wrongfully enter into possession of the property sued for, or exercise acts of ownership over the same adversely to the plaintiff, as aforesaid, the verdict of the jury shall be that the defendant is not guilty, and thereupon judgment shall be rendered in favor of the defendant against the plaintiff for the costs of the action, but such judgment shall not be a bar to a future action by the plaintiff against the defendant for the recovery of the property.

Sec. 1002. JUDGMENT. — Any final judgment rendered in an action of ejectment shall be conclusive as to the title thereby established as

between the parties to the action and all persons claiming under them since the commencement of the action.

Sec. 1003. IMPROVEMENTS. - If at any time before the trial the defendant shall give notice that if the verdict of the jury shall be in favor of the plaintiff's title the defendant will claim the benefit of permanent improvements that may have been placed on the property by the defendant or those under whom he claims, and shall offer evidence at the trial tending to show that he or those under whom he claims had peaceably entered into possession of the premises in controversy under a title which he or they had reason to believe and did believe to be good, and bad erected valuable and permanent improvements on said property, which were begun in good faith before the commencement of the suit, the jury shall be directed, in case they find in favor of the plaintiff's title and also find that such permanent improvements were made by the defendant, or those under whom he claims, under the circumstances aforesaid, to assess

First. The damages of the plaintiff, being the clear value over and above taxes and necessary expenses of the use and occupation of the property, exclusive of said improvements, during the whole period of the occupation of the same to the date of the verdict, and also any damage done to the property, by waste or otherwise, hy said parties during said occupation.

Second. The present value of any permanent improvements which may have been placed on the premises by the defendant or those under whom he claims.

Third. The present value of the property of the plaintiff without and exclusive of said improvements. - Act of June 30, 1902.

[Sec. 1003. IMPROVEMENTS. - If at any time before the trial the defendant shall give notice that if the verdict of the jury shall be in favor of the plaintiff's title the defendant will claim the benefit of permanent improvements that may have been placed on the property by the defendant or those under whom he claims, and shall offer evidence at the trial tending to show that he or those under whom he claims had peaceably entered into possession of the premises in controversy under a title which he or they had reason to believe and did believe to be good, and had erected valuable and permanent improvements on said property, which were begun in good faith before the commencement of the suit, the jury shall be directed, in case ibey find in favor of the plaintiff's title and also find that such permanent improvements were made by the defendant, or those under whom he claims under the circumstances aforesaid, to assess

First. The damages of the plaintiff, being the clear value over and above taxes and necessary expenses of the use and occupation of the property, exclusive of said improvements, to the defendant and those under whom he claims, during the whole period of their occupation of the same to the date of the verdict, and also any damage done to the property, by waste or otherwise, by said parties during said occupation.

Second. The present value to the plaintiffs of any permanent improvements which may have have been placed on the premises by the defendant or those under whom he claims.

Third. The present value to the defendant of the property of the plaintiff without and exclusive of the said improvements.]

Sec. 1004. If either party shall feel aggrieved by said assessment he may, within four days after the verdict, move to set the assessment aside, and the court may, for good cause shown, set the same aside and order another jury to be empaneled in the cause to make a new assessment.-- Act of June 30, 1902.

[Sec. 1004. In addition to evidence offered at the trial as to said values, the jury may be directed to view the premises, and their said assessments shall be returned with their verdict and recorded with the same. If either party shall feel aggrieved by said assessment he may, within three days after the verdict, move to set the assessment aside, and the court may, for good cause shown, set the same aside and order another jury to be impaneled in the cause to make a new assessment.]

Sec. 1005. If the damages of the plaintiff, assessed as aforesaid, shall exceed the value of said permanent improvements as ascertained by the jury, the plaintiff shall be entitled to a judgment for the excess in like manner as directed in section nine hundred and ninety-five aforesaid.

Sec. 1006. If the value of said improvements, so ascertained, shall equal but not exceed the plaintiff's damages, as found by the jury, the plaintiff shall only be entitled to judgment for the recovery of the property sued for and costs.

Sec. 1007. ELECTION OF PLAINTIFF.--If the value of said improvements shall be found by the jury to exceed the damages of the plaintiff, the plaintiff may elect either to pay to the defendant the amount of said excess or to demand of the defendant the value of the plaintiff's property, without the improvements, as fixed by the jury, and tender to the defendant a deed for said property, with all the plaintiff's right, title, and interest in the same.

Sec. 1008. PAYMENT FOR IMPROVEMENTS.—If the said plaintiff shall pay to the defendant, within the time fixed therefor by the court, or, in case of his refusal to accept the same, shall pay into court for his use the amount of such excess of the value of said improvements over the damages of the plaintiff, the plaintiff shall be entitled forthwith to a judgment and writ of possession.

Sec. 1009. TENDER OF DEED BY PLAINTIFF. If the plaintiff shall tender a deed as aforesaid to the defendant and demand the value of his property without the said improvements, as found by the jury, and the defendant shall fail or refuse to pay the same within the time fixed therefor by the court, the plaintiff shall, in like manner, be entitled to a judgment and writ of possession; and in case the plaintiff shall be a minor, the court may authorize said deed to be executed by his guardian.

Sec. 1010. JUDGMENT FOR DEFENDANT.-If the plaintiff shall fail or refuse either to pay the defendant the excess of the value of the improvements over the amount of the plaintiff's damages, or to tender a deed to the defendant, as aforesaid, and accept from him the value of the plaintiff's property, exclusive of the improvements, as aforesaid, the defendant may pay said value into court for the use of the plaintiff

, and thereupon the defendant shall be entitled to a judgment in his favor, but without costs, which judgment shall be a bar to any future action by the plaintiff against the defendant to recover said property for cause theretofore existing.

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