cording to equity, shall tax the costs and expenses which accrue in the action, including reasonable counsel fees, which shall be paid to plaintiff's counsel (1), unless the court award some part thereof to other counsel for service in the case for the common benefit of all the parties; and execution may issue therefor as in other cases. [29 v. 254, 216; S. & Č. 899.]

1. 21 O. S. 657.

CHAPTER X.

REAL ACTIONS.

SUBDIVISION I. TO QUIET TITLE AND RECOVER POSSESSION. 25779. Action to quiet title. An action may be brought by a person in possession, by himself or tenant, of real property, against any person who claims an estate, or interest therein, adverse to him, for the purpose of determining such adverse estate or interest. [67 v. 116, 2 557.]

Actual possession must be averred and shown, Yaple's Pr., etc., 773; 80. 382. Formerly, both title and possession, under acts 1824, 1831; 1 D. 65; 2 O. S. 540; 5 O. 194. The claim or interest must be adverse to the title of the party in possession, but it is not necessary that the adverse claim should relate to or affect the right of present possession, 34 O. S. 420. Before the amendment, 67 v. 116, it was held that the action did not lie against a party claiming prospectively under a contingent remainder, 19 O. S. 468. In 34 O. S. the court distinguished this case by saying that in it defendants did not claim an interest or estate in the land, Id. 425. The action lies to settle questions of disputed boundary lines, 35 O. S. 597; 17 O. S. 72, 76; to determine the validity of a ditch assessment, 30 O. S. 590; to reform a deed and quiet possession, 40 O. S. 41. It may be brought by a grantor after sale and before conveyance, 2O. S. 540; by lessor acquiring tax title against lessee, 8 Rec. 556; by purchaser from grantee of state against holder of certificate of purchase guilty of laches, 42 O. S. 410; by grantee of mortgagee with consent and by verbal agreement with mortgagor, 18 O. 273. It does not lie for a trespass, 34 O. S. 492, unless the acts are repeated and there are threats to persist, 35 0. S. 597; nor by purchaser from vendee, unless purchase money is tendered, 5 O. S. 211; nor to avoid a judgment obtained without legal service where plaintiff was not guilty of misconduct and defendant had actual knowledge of the pendency of the action, 37 O. S. 502; nor by an heir, not in possession, to annul the will, 31 O. S. 295; nor can it be sustained with respect to personalty where no title is established at law, and it is not necessary to prevent multiplicity of suits, 4 0.77. It will not be retained to adjust disputed questions of title between defendants in respect to land in which plaintiff has no interest, 29 O. S. 642. Where recovery of possession is not sought, there is no right to a jury trial, 17 O. S. 72. On dismissal of bill the court may quiet the title of defendants and restore possession to them, 35 O. S. 567.

25780. Vendee may recoup amount of liens and incumbrances. In actions for the recovery of purchase money of real estate, by vendor against vendee, it shall be competent for such vendee, notwithstanding his continued possession, to set up, by way of counter-claim, any breach of the covenants of title acquired by him from the plaintiff, and to make any person claiming an adverse estate or interest therein party to the action; and upon the hearing he shall be entitled to recoup, against the plaintiff's demand, the present worth of any existing lien or incumbrance thereon; and if the adverse estate or interest of the claimant is an estate in reversion or remainder, or contingent upon a future event, the court may order the vendee, with his assent, to surrender the possession to his vendor, upon the repayment of so much of the purchase money as has been paid thereon, with interest. or direct the payment of the purchase money claimed in the action, upon the plaintiff giving bond in double the amount thereof, with two or more sureties, to be approved by the court, for the payment of the same, with interest, if the defendant or his privies be subsequently evicted by reason of the defect. [67 v. 116, ? 557.]

The provisions of this act are remedial, and affect all causes of action arising after its passage, 24 O. S. 554; see Id. 542. A third person holding an outstanding title must be made defendant, and the validity of his title established before the defense becomes available, 28 O. S. 39. The right to bring in such third party exists only where there has been a breach of the covenants in the deed, 35 Ó. S. 289; generally, 2 C. C. R. 196, 198.

25781. Action to recover possession of real estate. Petition. In an action for the recovery of real property, it shall be sufficient if the plaintiff state in his petition that he has a legal estate therein, and is entitled to the possession thereof, describing the same as required by 5095, and that the defendant unlawfully keeps him out of the possession; and it shall not be necessary to state how the plaintiff's estate or ownership is derived. [51 v. 57, 558; S. & C. 1119.]

See 5060, notes-Ownership or title, p. 70; 21 Bull 319.

85782. Id. Answer. It shall be sufficient, in such action, if the defendant in his answer deny generally the title alleged in the petition, or that he withholds the possession; but if he deny the title of the plaintiff, possession by the defendant shall be taken as admitted, and

when he does not defend for the whole premises, the answer shall describe the particular part for which defense is made, and the defendant may further set forth in his answer such other and further grounds of defense, counter-claim and set-off, as he has or might have in any other form of action, whether they are such as have heretofore been denominated legal or equitable, or both. [80 v. 66; 51 v. 57, 2 559; S. & Č. 1122.]

See 8 5006, Ejectment; 2 5070, p. 103. In an answer denying title, a plea of the statute of limitations, 29 O. S. 359; 35 O. S. 387, and a denial that defendant wrongfully keeps plaintiff out of possession, 37 O. S. 147, is surplusage. An equitable defense must be specially pleaded, 36 O. S. 357. Illegality of consideration was, before the last amendment, held no defense in an action of ejectment upon a mortgage, 7 O. (Pt. 2) 70; 37 0. S. 383. Defendant relying solely on his legal title, and failing, is not estopped to maintain an action to correct mistakes in the deeds under which the parties to the action claimed. He may elect to rely on such equitable title as a defense or counter-claim, or maintain an action thereon, 39 O. S. 141.

25783. Petition in action by tenant in common against co-tenant. In an action by a tenant in common of real property against a co-tenant, the plaintiff must state, in addition to what is required in 2 5781, that the defendant either denied the plaintiff's right, or did some act amounting to such denial. [51 v. 57, ? 560; S. & C. 1122.]

25784. The recovery when right terminates during the action. In an action for the recovery of real property, when the plaintiff shows a right to recover at the time the action was commenced, but 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 for withholding the property. [51 v. 57, ? 561; S. & C. 1122.]

25785. Parties may have benefit of occupying-claimant law. Parties in an action for the recovery of real property may avail themselves, if entitled thereto, of the benefit of the statutes for the relief of occupying claimants of land. [51 v. 57, ? 564; S. & C.1122.]

SUBDIVISION II. OCCUPYING CLAIMANTS.

25786. In what cases occupying claimants to be paid for improvements. A person in the quiet possession of lands or tenements, and claiming to own the same, who has obtained title to and is in possession of the same

without fraud or collusion on his part, shall not be evicted or turned out of possession by any person who sets up and proves an adverse and better title, until the occupying claimant, or his heirs, are fully paid the value of all lasting and valuable improvements made on the land by him, or by the person under whom he holds, previous to receiving actual notice by the commencement of suit on such adverse claim, whereby such eviction may be effected, unless such occupying claimant refuse to pay to the person so setting up and proving an adverse and better title the value of the land, without improvements made thereon as aforesaid, upon demand of the successful claimant, or his heirs, as hereinafter provided, when:

1. Such occupying claimant holds a plain and connected title, in law or equity, derived from the records of a public office; or,

2. Holds the same by deed, devise, descent, contract, bond, or agreement, from and under a person claiming title as aforesaid, derived from the records of a public office, or by deed duly authenticated and recorded; or,

3. Under sale on execution, against a person claiming title as aforesaid, derived from the records of a public office, or by deed duly authenticated and recorded; or,

4. Under a sale for taxes authorized by the laws of this state, or the laws of the territory northwest of the river Ohio; or,

5. Under a sale and conveyance made by executors, administrators, or guardians, or by any other person or persons, in pursuance of an order of court, or decree in chancery, where lands are or have been directed to be sold. [29 v. 261, ? 1; S. & C. 881.]

Notice of title before improvement is a bar, 5 W. L. J. 465; but an occupying claimant is not presumed to know any defects or recitals that appear in deeds prior to the deed of his grantor; and if a recital in that or his own deed shows that the premises once belonged to a third person, it will not defeat the occupant's claim to the benefit of the statute, 1 O. S. 118. And the mere fact that the occupant had notice of the claim which is successfully asserted is not conclusive evidence of fraud and collusion on the part of such purchaser, but he may show, notwithstanding such notice, that he purchased in actual good faith and made his improvements in the honest belief that the land was his own, 11 O. S. 339. To entitle a party to relief, he must be evicted by a title both paramount and adverse. Eviction by a trustee holding the legal title is not sufficient, 35 O. S. 18; but the facts may be such as to entitle such evicted purchaser on cross-petition to compensation in equity for permanent improvements made

upon the premises, to be charged as a lien upon the land, Id.; see 30. 327. The party evicted must make his claim for the benefits of the law in the action by which he is evicted, otherwise he waives it, 40 O. S. 343. The benefits of the law do not extend to an assignee of land warrant, 7 O. (Pt. 2) 200; to the heir of a purchaser under a fraudulent conveyance, 13 O. S. 263; to one in possession under a mortgagor, but without deed from him, W. 386; see 30. 327; to a mortgagee of a tenant in common who took under a will providing for survivorship, 22 O. S. 255.

1. A township trustee's office is a "public office" within the meaning of the law, 6 O. 538.

2. Adeed duly authenticated and recorded" means a deed to the person under whom the occupant claims, and not a deed to the occupant, 1 O. S. 118 (overruling 19 0. 57); 13 0.308. A deed from purchaser's heir sufficient, 1 C. S. C. R. 83.

3.5 0.398.

4. See 7 O. (Pt. 1) 17; 8 O. 539.

5. A purchaser at judicial sale is entitled to the benefits of the law, 5 O. 398; 6 O. 9, and a purchaser from_judgment debtor after judicial sale and before confirmation, 4 Bull 441; 2 Clev. R. 201, but not a purchaser from judgment debtor after levy, 7 0. (Pt. 2) 188.

25787. Tax title gives right to benefits of occupyingclaimant law. The title by which the successful claimant succeeds against the occupying claimant, in all cases of lands sold for taxes by virtue of any law of this state, or the laws of the territory northwest of the river Ohio, shall be considered an adverse and better title, under the provisions of the last section, whether it be the title under which the taxes were due, and for which the land was sold, or any other title or claim; and the occupying claimant holding possession of land so sold for taxes, having the deed of a collector of taxes or county auditor therefor, or a certificate of such sale from a collector of taxes or a county treasurer, or claiming under the person who holds such deed or certificate, shall be considered as having sufficient title to the land to demand the value of improvements under the provisions of the last section. [29 v. 261, ? 2; S. & C. 883.]

25788. Entry of claim for improvement, and drawing jury. The court rendering judgment against the occupying claimant, in any case provided for by this subdivision, shall, at the request of either party, cause a journal entry thereof to be made; the sheriff and clerk of the court, when thereafter required by either party, shall meet, and draw from the jury box the names of twelve men returned to serve as jurors, in the same manner as they are required by law to draw a jury in