§ 1511. Property claimed in action; how described in complaint. The complaint must describe the property claimed with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there is any, or in some other appropriate manner; so that, from the description, possession of the property claimed may be delivered, where the plaintiff is entitled thereto.

§ 1512. Motion for plaintiff's attorney to produce his authority. A defendant in an action to recover real property or the possession thereof may, at any time before answering, upon an affidavit that evidence of the authority of the plaintiff's attorney to commence the action has not been served upon him, apply, upon notice, to the court or judge thereof, for an order directing the attorney to produce such evidence.

§ 1513. Order thereupon. Upon such an application, the court or judge must, in a proper case, make an order requiring the plaintiff's attorney to produce, as directed therein, evidence of his authority to commence the action, and staying all proceedings therein, on the part of the plaintiff, until the evidence is produced.

§ 1514. Evidence of authority. Any written request of the plaintiff or his agent, to the plaintiff's attorney, to commence the action, or any written recognition of his authority so to do, verified by the affidavit of the attorney, or any other competent witness, is sufficient presumptive evidence of such authority.

§ 1515. When ouster to be proved. Where the action is brought by a tenant in common, or a joint tenant, against his co-tenant, the plaintiff, besides proving his right, must also prove that the defendant actually ousted him, or did some other act amounting to a total denial of his right.

§ 1516 Rule when there are distinct occupants. Where there are two or more defendants, and it is alleged, in the answer of either of them, that he occupies in severalty, or that he and one or more of his co-defendants occupy jointly, one or more distinct parcels, and that one or more other defendants possess other parcels, in severalty or jointly, the court may, in its discretion, upon the application of the plaintiff, and upon such terms as justice requires, direct that the action be divided into as many actions as are necessary. If the action is not so divided, and it appears, upon the trial, that the allegation is true, the plaintiff must, before the evidence is closed, elect against which defendant or defendants he will proceed; and a judg ment dismissing the complaint must thereupon be rendered, in favor of the other defendants.

§ 1517. The last section qualified. The last section does not apply to a case where two or more defendants occupy different apartments in a building. In such a case, in an action to recover the building and its curtilage, the plaintiff is entitled to judgment jointly against all the defendants who are liable to him.

$ 1518. When plaintiff may recover against one defendant, subject to rights of others. Section 1516 of this act does not apply to a case where one or more defendants, answering as therein presented, hold under another defendant, and the plaintiff elects to proceed against the latter, subject to the rights and interests of the former. In such a case, the proceedings against the defendants so answering must be stayed until final judg ment; and if the plaintiff recovers final judgment against the defendant, under whom they hold, the judgment operates as a transfer to the plaintiff of that defendant's right, title, and interest, and the costs of the defendant or defendants so answering, are in the discretion of the court.

§ 1519. Verdict, etc., to state nature of plaintiff's estate. A verdict, report, or decision, in favor of the plaintiff, in an action specified in this article, must specify the estate of the plaintiff in the property recovered, whether it is in fee, or for life, or for a term of years, stating for whose life it is, or specifying the duration of the term, if the estate is less than a fee.

§ 1520. Expiration of plaintiff's title before trial. If the right or title of the plaintiff, in an action specified in this article, expires after the commencement of the action, but before the trial, and he would have been entitled to recover, but for the expiration, the verdict, report, or decision must be rendered according to the fact; and the plaintiff is entitled to judgment for his damages for the withholding of the property, to the time when his right or title so expired.

§ 1521. Abatement of action. The provisions of title fourth of chapter eighth of this act, as applied to an action specified in this article, are subject to the qualification that the court may, in its discretion, proceed as prescribed either in that title or in the next two sections.

§ 1522. Action to be divided, when different persons succeed to different parcels. Where, upon the death of a party, different persons succeed to the decedent's title to, or interest in, different distinct parcels of the property sought to be recovered, the court may, upon motion, and upon such terms as justice requires, direct that the action be divided into as many actions as are necessary; and that the successor to the title or interest of the decedent, to or in each distinct parcel, be substituted as plaintiff or defendant, as the case requires, in the action relating thereto.

§ 1523. Id.; when different persons succeed to real property and to rents and profits. Where the plaintiff seeks to recover damages for withholding the property, and, upon the death of a party, different persons succeed to the decedent's right to or liability for those damages, and to his title to or interest in the property, the court may, upon motion made upon notice to the persons to be affected, and upon such terms as justice requires, direct the action to be divided into two actions, one to recover the possession of the property, with the rents and profits thereof accruing after the decedent's death; the other to recover the damages accruing before his death; and that the successor in interest of the decedent, with respect to the cause of action in each action, be substituted as plaintiff or defendant therein, as the case requires.

§ 1524. Effect of judgment rendered after trial of issue of fact. Except in a case where it is otherwise expressly prescribed in this act, a inal judgment in an action specified in this article, rendered upon the trial of an issue of fact, is conclusive, as to the title established in the action, upon each party against whom it is rendered, and every person claiming from, through, or under him, by title accruing, either after the judgmentroll is filed, or after a notice of the pendency of the action is filed in the proper county clerk's office, as prescribed in article ninth of this title.

§ 1525. New trial may be granted. The court, at any time within three years after such a judgment is rendered, and the judgment-roll is filed, upon the application of the party against whom it was rendered, his heir, devisee, or assignee, and upon payment of all costs, and all damages, other than for rents and profits or for use and occupation, awarded thereby to the adverse party, must make an order vacating the judgment, and granting a new trial in the action. The court, upon a like application, made within two years after the second final judgment is rendered, and the judgment-roll is

filed a make an order vacating the second judgment, and granting a new trial, upon the like terms, if it is satisfied that justice will be thereby promoted, and the rights of the parties more satisfactorily ascertained, and established. Not more than two new trials shall be granted under this

section.

§ 1526. Effect of judgment by default, etc. A final judgment for the plaintiff, rendered in an action specified in this article, otherwise than upon the trial of an issue of fact, is, after the expiration of three years from the filing of the judgment-roll, conclusive upon the defendant, and every person claiming from, through or under him, by title accruing, either after the judgment-roll is filed, or after a notice of the pendency of the action is filed in the proper county clerk's office, as prescribed in article ninth of this title. But within five years after the judgment-roll is filed, the court, upon the application of the defendant, his heir, devisee, or assignee, and upon payment of all costs and damages awarded to the plaintiff, must make an order vacating the judgment, and granting a new trial, if it is satisfied that justire will be thereby promoted, and the rights of the parties more satisfactorily ascertained and established, but not otherwise.

§ 1527. Id.; exception in case of disability. In a case specified in the last section, if the defendant is, at the time of the filing of the judgmentroll, either:

1. Within the age of twenty-one years; or,

2. Insane; or,

3. Imprisoned on a criminal charge, or in execution upon conviction of a criminal offense, for a term less than for life.

The time of such a disability is not a part of the three years, specified in the last section; but such a defendant, his heir, devisee, or assignee, may commence an action for the recovery of the real property claimed, at any time within three years after the disability ceases; but not afterwards.

§ 1528. The last three sections qualified. The last three sections are not applicable, where the action is founded upon an allegation of rent in arrear; or in a case to which section 445 of this act is applicable.

§ 1529. Possession not to be changed by vacating of judgment, except, etc. Where the plaintiff has taken possession of real property, by virtue of a final judgment, his possession shall not be in any way affected by the vacating of the judgment, except as prescribed in section 1525 or section 1526 of this act. In such a case, if the defendant thereafter recovers final judgment in the action, it must award to him the restitution of the possession of the property; and he may have an execution thereupon for the delivery of the possession to him, as if he was plaintiff.

§ 1530. Evidence on new trial. Upon a new trial, granted as prescribed in this article, the defendant may show any matter in defence, which ne might show to entitle him to recover the possession of the property, if he was plaintiff in the action.

§ 1531. Damages recoverable; set-off by defendant. In an action, brought as prescribed in this article, the plaintiff, where he recovers judgment for the property, or possession of the property, is entitled to recover, as damages, the rents and profits or the value of the use and occupation of the real property recovered, for a term not exceeding six years; but the damages shall not include the value of the use of any improvements made by the defendant, or those under whom he claims. Where permanent improvements have been made, in good faith, by the defendant, or those under

whom he claims, while holding, under color of title, adversely to the plaintiff, the value thereof must be allowed to the defendant, in reduction of the damages of the plaintiff, but not beyond the amount of those damages.

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ARTICLE SECOND.

ACTION FOR PARTITION.

SECTION 1532. When action for partition may be brought.

1533. Id.; by remainderman.

1534. Id.; by an infant.

1535. Guardian ad litem; how appointed.

1536. Security.

1537. When heir may maintain action for partition of devised property.

1538. Who must be parties.

1539. Who may be made parties.

1540. Id.; as to persons having liens.

1541. Provision, where a party is unknown.

1542. Complaint to state interests of parties.

1543. Title of parties may be tried.

1544. Issues of fact, triable by jury.

1545. When title to be ascertained by the court.
1546. Interlocutory judgment.

1547. Partial partition; when made.

1548. Shares may be set-off in common.
1549. Appointment of commissioners.

1550. Commissioners to be sworn, etc.

1551. Id.; when to make partition.

1552. Partition; how made.

1553. Provision where there is a particular estate.
1554. Report of commissioners.

1555. Fees and expenses.

1556. Confirming or setting aside report.

1557. Final judgment on report. Effect thereof.

1558. Judgment must direct delivery of possession.

1559. Costs; how awarded. Id.; against unknown parties.

1560. Sale of property; when directed.

1561. Reference to inquire as to creditors.

1562. Duty of referee.

1563. Money to be paid into court.

1564. Application for money.

1565. Payment of incumbrances.

1566. Other parties not to be delayed.

1567. Sale of dower interest.

1568. Purchaser to hold the property free therefrom.

1569. Gross sum to be paid to or invested for tenant in dower, etc.

1570. Interests of owners of future estates to be protected.

1571. Married woman may release her interest.

1572. Unknown owners.

1573. Sale; terms of credit thereupon.

1574. Credit; how secured.

1575. Separate securities.

1576. Report of sale.

1577. Final jugment; effect thereof.

1578. Id.; effect thereof upon incumbrancers.

1579. Costs and expenses; how paid.

1580. Distribution of proceeds.

1581. Shares of infants.

1582. Shares of unknown and absent owners.

1583. Shares of tenants of particular estates.

1584. Court may require security to refund.

1585. Security to be taken in name of county treasurer.

1586. Action thereupon.

1587. Compensation to equalize partition.

,

SECTION 1588. Proceedings on death of parties.

1589. Rents, etc., may be adjusted.

1590. Partition by guardian of infant, committee of lunatic, etc.
1591. Contents of petition.

1592. Court may authorize partition.

1593. Effect of releases.

1594. When the State is interested.

1595. Exemplified copy of judgment may be recorded.

§ 1532. When action for partition may be brought. Where two or more persons hold and are in possession of real property, as joint tenants or as tenants in common, in which either of them has an estate of inheritance, or for life, or for years, any one or more of them may maintain an action for the partition of the property, according to the respective rights of the persons interested therein; and for a sale thereof, if it appears that a partition thereof cannot be made, without great prejudice to the owners.

§ 1533. Action for partition by remainderman. Where two or more persons hold as joint tenants, or as tenants in common, a vested remainder or reversion, any one or more of them may maintain an action for the partition of the real property to which it attaches, according to their respective shares therein, subject to the interest of the person holding the particular estate therein, but no sale of the premises in such an action shall be made except by and with the consent in writing, to be acknowledged or proved and certified in like manner as a deed, to be recorded by the person or persons owning and holding such particular estate or estates; and if in such an action it shall appear in any stage thereof that partition or sale cannot be made without great prejudice to the owners, the complaint must be dismissed. The dismissal of the complaint, as herein provided, shall not affect the right of any party to bring a new action, after the determination of such particular estate. [AM'D CH. 683 OF 1887.]

§ 1534. Id.; by an infant. An action for the partition of real property shall not be brought by an infant, except by the written authority of the surrogate of the county in which the property, or a part thereof, is situated. The authority shall not be given, unless the surrogate is satisfied, by affidavit or other competent evidence, that the interests of the infant will be promoted by bringing the action. A judgment for a partition or sale shall not be rendered in such an action, unless the court is satisfied that the interests of the infant will be promoted thereby, and that fact is expressly recited in the judgment.

§ 1535. Guardian ad litem; how appointed. A guardian ad litem for an infant party, in an action for partition, can be appointed only by the

court.

§ 1536. Security. The security to be given, by the guardian ad litem for an infant party, in an action for partition, must be a bond, to the people of this State, executed by him and one or more sureties, as the court directs, in a sum fixed by the court, conditioned for the faithful discharge of the trust committed to him as guardian, and to render a just and true account of his guardianship, in any court or place, where thereunto required. The bond must be filed with the clerk, before the guardian enters upon the execution of his duties; and it cannot be dispensed with, although he is the general guardian of the infant. [AM'D CH. 404 OF 1884.]

§ 1537. When heir may maintain action for partition of devised property. A person claiming to be entitled, as a joint tenant or a tenant in common, by reason of his being an heir of a person who died, holding and in possession of real property, may maintain an action for the partition thereof, whether he is in or out of possession, notwithstanding an apparent devise thereof to another by the decedent, and possession under such a devise. But in such an action, the plaintiff must allege and establish that the apparent devise is void.