CHAPTER III.

ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY,

AND OTHER PROVISIONS RELATING ΤΟ ACTIONS CONCERNING REAL ESTATE.

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 and measure the land in dispute.

§743. Order, what to contain and how served. If unnecessary injury done, the party surveying to be liable therefor.

14. A mortgage must not be deemed a conveyance, whatever its

terms.

$ 745. When court may grant injunction: during foreclosure, after sale on execution, before conveyance.

746. Dainages 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.

Action to quiet title-before Code, plaintiff's possession essential, 5 Cal. 181; 6 Cal. 33; 7 Cal. 319; 12 Cal. 298, 299; 13 Cal. 107, 521; 14, Cal. 279; 15 Cal. 127; Curtis v. Sutter, 15 Cal. 259; 17 Cal. 149, 461; 21 Cal. 342, 504; 23 Cal. 71; 25 Cal. 437; 28 Cal. 194, 645; 29 Cal. 190; 30 Cal. 662; 32 Cal. 109, 620; 34 Cal. 365, 558, 563; 35 Cal. 30: 36 Cal. 313; 37 Cal. 282; 38 Cal. 679; 39 Cal. 13; 40 Cal. 58; 43 Cal. 83; 46 Cal. 162: since Code, otherwise, 46 Cal. 556; 48 Cal. 623; 49 Cal. 356, 517; 50 Cal. 485, 619; 51 Cal. 301; 52 Cal. 430, 605; 53 Cal. 18, 395, 649: generally, see citations before and since Code, supra.

Obligations-determining claim to, sec. 1050.

§ 739. If the defendant in such action disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff cannot recover costs.

Disclaimer-14 Cal. 609; 17 Cal. 262; 22 Cal. 105; 27 Cal. 331; 34 Cal. 563.

§ 740. In an action for the recovery of real property, where the plaintiff shows a right to recover at the time the action was commenced, but it appears that his right

has terminated during the pendency of the action, the verdict and judgment must be according to the fact, and the plaintiff may recover damages for withholding the property.

Commencement of action-right to recover at, 14 Cal. 465: title subsequently acquired, 27 Cal. 239; 30 Cal. 467; 39 Cal. 354; 41 Cal. 221;. 47 Cal. 437.

Termination of right-22 Cal. 513.

Pendency of action-sec. 1049.
Damages-see 51 Cal. 112.

§ 741. When damages are claimed for 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. Damages for withholding-28 Cal. 484.

Improvements-setting off value of, 2 Cal. 145; 5 Cal. 319; 8 Cal. 165, 511; 14 Cal. 465; 18 Cal. 217, 694; 25 Cal. 44; 29 Cal. 160, 330; 31 Cal. 487; 35 Cal. 346; 47 Cal. 56; 51 Cal. 112.

§ 742. 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, 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 therein, 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, [In effect March 10th, 1880.]

Orders, motions, etc.-sec. 1003 et seq.

§ 743. 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 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.

§ 744. A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real propert, without a foreclosure and sale.

Construction of section-under Practice Act, 23 Cal. 16; 29 Cal. 253. Conveyance deemed mortgage-Deed apparently absolute, so construed: Civil Code, sec. 2925; 10 Cal. 197; 22 Cal. 116; 24 Cal. 385; 30 Cal. 685; 31 Cal. 305; 33 Cal. 333; 46 Cal. 299: proof, Civil Code, sec. 2925; 13 Cal. 116; 15 Cal. 287; 27 Cal. 18, 603; 29 Cal. 18; 33 Cal. 686; 36 Cal. 28: 37

Cal. 454; 41 Cal. 22; 43 Cal. 496; 50 Cal. 207: test, 42 Cal. 169: prerequistes, 40 Cal. 119. Conditional conveyance, like construction, 22 Cal. 255: mortgage mere security. 9 Cal. 365; 16 Cal. 461; 17 Cal. 589; 21 Cal. 609. Whatever its terms, 17 Cal. 589. Mortgagee's possession, Civil Code, sec. 1927; 15 Cal. 287; 22 Cal. 255, 330; 24 Cal. 472; 28 Cal. 309. Contrary contruction, when, 14 Cal. 256, 428; 18 Cal. 118; 26 Cal. 595; 30 Cal. 289; 33 Cal. 333; 38 Cal. 586; 42 Cal. 75, 236; 43 Cal. 597; 50 Cal. 23: burden of proof, 53 Cal. 395.

§ 745. The court may by injunction, on good cause shown, restrain the party in possession from 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.

Injunction-generally, secs. 525–533.
Receiver-sec. 564, subd. 2.

Waste-Civil Code, sec. 2929; 10 Cal. 265: 24 Cal. 467: Buckout v.
Swift, 27 Cal. 433: fixtures, 10 Cal. 258; 14 Cal. 72; 23 Cal. 209.
Foreclosure of mortgage-sec. 726 and note.

Execution sales-sec. 694 et seq.

§ 746. 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 absoute, recover damages for injury to the property by the tenant in possession after sale and before possession is delivered under the conveyance.

See note on WASTE to sec. 745.

§ 747. An action for the recovery of real property against a person in possession cannot be prejudiced by any alienation made by such person, either before or after the commencement of the action.

Lis pendens-sec. 409 and note.

§ 748. 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.

Mining customs, rules, etc.-3 Cal. 224; 6 Cal. 435; 12 Cal. 426, 534; 14 Cal. 378; 15 Cal. 152; 16 Cal. 383; 17 Cal. 107; 18 Cal. 47, 582; 20 Cal. 198; 23 Cal. 245; 26 Cal. 527; 31 Cal. 387; 35 Cal. 30; 36 Cal. 219; 42 Cal. 626.

CODE CIV. PROC.-24.

CHAPTER IV.

ACTIONS FOR THE PARTITION OF REAL

PROPERTY.

§ 752. Who may bring actions for partition.

753. Interests of all parties must be set forth in the complaint. 754. Lien-holders not of record need not be made parties.

755. Plaintiff must file notice of lis pendens.

756. Summons must be addressed 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. Lien-holders must be made parties, or a referee be appointed to

ascertain their rights.

§ 762. Lien-holders must be notified to appear before the referee ap

pointed.

§ 763. The court may order a sale or partition, and appoint referees therefor.

§ 764. Partition must be made according to the rights of the parties, as determined by the court.

§ 765. Referees must make a report of their proceedings. $766. The court may set aside or affirm report, and enter judgment thereon. Upon whom judgment to be conclusive."

§ 767. Judgment not to affect tenants for years to the whole property. 768. Expenses of partition must be apportioned among the parties. 769. A lien on an undivided interest of any party is a charge only on the share assigned to such party.

§ 770. Estate for life or years may be set off in a part of the property not sold, when not all sold.

§ 771. Application of proceeds of sale of incumbered property.

§ 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 the determination of the claims of the parties.

§ 775. Sales by referees must be at public auction.

776. The court must direct the terins of sale or credit.

777. Referees may take securities for purchase-money.

778. Tenants whose estate has been sold shall receive compensation.

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 coutin. gent 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. Referee must make a report of the sale to the court.

§ 785. If confirmed, conveyances may be executed.

$786. Proceeding if a lren-holder become a purchaser.

787. Conveyance must be recorded, and will be a bar against parties. 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.

5792. When unequal partition is ordered, compensation may be alljudged in certain cases.

5793. The share of an infant may be paid to his guardian.

$794. The guardian of an insane person may receive the proceeds of such party's interest.

$795. A guardian may consent to partition without action, and execute releases.

$796. Costs of partition a lien upon shares of partners.

$797. The court, by consent, may appoint a single referee.

$798. Expenses of previous litigation for common benefit allowed. $799. Abstract of title in action for partition-when cost of allowed. $800. Abstract, how made and verified.

§ 801. Interest allowed on disbursements made under direction of the court.

§ 752. When several cotenants 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. Proceedings for partition-are special and statutory, 19 Cal. 210: equitable character, 35 Cal. 576; delayed, when, 21 Cal. 191. Object of partition-27 Cal. 91; 35 Cal. 576.

Tenants in common-seeking partition, etc., 3 Cal. 59; 36 Cal. 112: 37
Cal. 520.

Estate of inheritance, etc.-mining interests, 23 Cal. 501.
Collateral relief-taking account, etc., 16 Cal. 464; 26 Cal. 69.

Parol partition-24 Cal. 218, 268; 27 Cal. 418; 46 Cal. 361; Lauterman v. Williams, June 4th, 1880, 5 l'ac. C. L. J. 527.

Partition of easements-Civil Code, sec. 807.

§ 753. The interests of all persons in the property, whether such persons be known or unknown, must be set forth in the complaint specifically and particularly, as far as known to the plaintiff; and if one or more of the parties, or the share or quantity of interest of any of the parties, be unknown to the plaintiff, or be uncertain or contingent, or the ownership of the inheritance depend upon an executory devise, or the remainder be a contingent remainder, so that such parties cannot be named, that fact must be set forth in the complaint.

Complaint in partition-26 Cal. 69; 27 Cal. 329; 40 Cal. 493; 48 Cal. 394; Lauterman v. Williams, June 4th, 1880, 5 Pac. C. L. J. 527: complaint generally, sec. 426, and notes. Parties, sec. 754; 27 Cal. 329; 35