TITLE VIII.

ACTIONS IN PARTICULAR CASES.

CHAPTER I.

ACTIONS FOR THE FORECLOSURE OF MORTGAGES.

SEC. 256. Court, power of, to direct sale of propety. 257. Surplus after sale, how disposed of.

258. Sale, when debt is not due, rebate of interest.

SEC. 256. There shall be but one action for recovery of debt, or the enforcement of any right secured by a mortgage, or lien, upon real estate, or personal property, which shall be for enforcement of said lien, or mortgage, in accordance with the provisions of this chapter. In such action, the court shall have power before judgment, or decree, to direct a sale of the encumbered property, or such part thereof as shall be necessary, and the application of the proceeds to the payment of the costs and expenses of the sale, the costs of the writ, and the amount due to the plaintiff. If it shall appear from the sheriff's return that there is a deficiency of such proceeds, and a balance still due to the plaintiff, the judgment shall be docketed for such balance, and shall, from the time of such docketing, be a lien upon the real estate of the judgment debtor, and an execution may be issued by the clerk of the court, as on other judgments against the property of the judgment debtor, to collect such balance or deficiency.

SEC. 257. If there be surplus money remaining after payment of the amount due on the mortgage, lien or encumbrance, with costs, the court may cause the same to be paid to the person entitled to it, and, in the meantime, may direct it to be deposited in court.

SEC. 258. If the debt for which the mortgage, lien or encumbrance is held, be not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs, the sale shall cease; and afterwards, as often as more becomes due, for principal or interest, the court may, on motion, order more to be sold. But if the property cannot be sold in portions, without injury to the parties, the whole may be ordered to be sold in the first instance, and the entire debt and costs paid, there being a rebate of interest where such rebate is proper.

CHAPTER II.

ACTIONS FOR NUISANCE, WASTE AND WILFULL TRESPASS, IN CERTAIN CASES, ON REAL PROPERTY.

SEC. 259. Nuisance defined, action for, judgment for.

260. Waste, action for, judgment for.

261. Injuring timber, etc., liability for.

263. Forcible or unlawful entry, judgment for.

SEC. 259. Anything which is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, or the obstruction of any highway, or the closing of the channel of any stream used for boating or rafting logs, lumber or timber, so as to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action. Such action may be brought by any person whose property is injuriously affected or whose personal enjoyment is lessoned by the nuisance; and by the judgment, the nuisance may be enjoined or abated, as well as damages recovered.

SEC. 260. If a guardian, tenant for life or years, joint tenant or tenant in comnion of real property, commit waste thereon, any person aggrieved by the waste may bring an action against him therefor; in which action there may be judgment for treble damages.

SEC. 261. Any person who shall cut down or carry off any wood or underwood, tree or timber, or girdle or otherwise injure any tree or timber on the land of another person, or on the street or highway in front of any person's house, village or city lot, or cultivated grounds; or on the commons or public grounds of any city or town, or on the street or highway in front thereof, without lawful authority, shall be liable to the owner of such land, or to such city or town, for treble the amount of damages which may be assessed therefor, in a civil action, in any court having jurisdiction.

SEC. 262. Nothing in the last section shall authorize the recoverery of more than the just value of the timber taken from uncultivated wood land for the repair of the public highway or bridge upon the land or adjoining it.

SEC. 263. If a person recover damages for a forcible or unlawful entry in or upon, or detention of, any building or any cultivated real property, judgment may be entered for three times the amount at which the actual damages are assessed.

CHAPTER III.

ACTIONS TO DETERMINE CONFLICTING CLAIMS TO REAL PROPERTY, AND OTHER

PROVISIONS RELATING TO ACTIONS CONCERNING REAL ESTATE.

SEC. 264. Action by person in possession.

265. Cost, when not to be recovered.

266. Action, when right has terminated during pendency.

267. Improvements, value of to be allowed.

268. Court may allow survey to be made.

269. Order for survey.

270. Mortgage not to be deemed conveyance.
271. Court may enjoin injury.

272. Damages for injury, who may recover.

273. Action for recovery not prejudiced by alienation.

SEC. 264. An action may be brought by any person in possession, by himself or his tenant, of real property, against any person who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate or interest.

SEC. 265. If the defendant in such action disclaim in his answer, any interest or estate in the property, or suffer judg ment to be taken against him without answer, the plaintiff shall not recover costs.

SEC. 266. 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 pending of the action, the verdict and judgment shall be according to the fact; and the plaintiff may recover damages for withholding the property.

SEC. 267. 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 claims of the plaintiff, in good faith, the value of such improvements shall be allowed as a set-off against such damages.

SEC. 268. The court in which an action is pending for the recovery of real property, or a judge thereof, may, on motion, upon notice to 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, for the purpose of the action.

SEC. 269. The order shall describe the property, and a copy thereof shall be served on the owner or occupant; and there

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upon such party may enter upon the property, with necessary surveyors and assistants, and make such survey and measurements; but if any unnecessary injury be done to the property, he shall be liable therefor.

SEC. 270. 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 property without a foreclosure and sale.

SEC. 271. 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.

SEC. 272. When real property shall have been sold on execution, the purchaser thereof, or any person who may have succeeded to his interest, may, after his estate becomes absolute, recover damages for injury to the property by the tenant in possession, after sale and before possession is delivered under the conveyance.

SEC. 273. An action for the recovery of real property against a person in possession, cannot be prejudiced by an alienation made by such person, either before or after the commencement of the action.

CHAPTER IV.

ACTIONS FOR THE USURPATION OF AN OFFICE OR FRANCHISE.

SEC. 274. Action to be brought by district attorney.

275. Complaint, what to state, defendant may be arrested.

276. Judgment, how rendered,

277. When person alleged to be entitled may enter an office.

278. Damages recoverable.

279. Rights of several may be tried in one action.

280. Judgment when defendant has intruded into office.

SEC. 274. An action may be brought by the district attorney in the name of the people of the United States and of the territory of Idaho, upon his own information, or upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this territory. And it shall be the duty of the district attorney to bring the action, whenever he has reason to believe that any such office or fran

chise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor.

SEC. 275. Whenever such action is brought, the district attorney, in addition to the statement of the cause of action, may also set forth in the complaint the name of the person rightly entitled to the office, with a statement of his right thereto; and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office, and by means of his usurpation thereof, an order may be granted by a judge of the supreme court, or a district judge, for the arrest of such defendant, and holding him to bail; and thereupon he may be arrested, and held to bail, in the same manner, and with the same effect, and subject to the same rights and liabilities, as in other civil actions where the defendant is subject to arrest.

SEC. 276. In every such case, judgment may be rendered upon the right of the defendant, and also upon the right of the party alleged to be entitled; or only upon the right of the defendant, as justice shall require.

SEC. 277. If the judgment be rendered upon the right of the person alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office, and executing such official bond as may be required by law, to take upon himself the execution of the office.

SEC. 278. If the judgment be rendered upon the right person so alleged to be entitled, in favor of such person, he may recover, by action, the damages which he shall have sustained by reason of the usurpation of the office by the defendant.

SEC. 279. When several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise.

SEC. 280. When a defendant, against whom such action has been brought, is adjudged guilty of usurping or intruding into, or unlawfully holding any office, franchise, or privilege, judgment shall be rendered that such defendant shall be excluded from the office, franchise, or privilege, and that he pay the costs of the action. The court may also, in its discretion, impose upon the defendant a fine, not exceeding five thousand dollars; which fine, collected, shall be paid into the treasury of the territory.