4378. In the construction of every instrument creating or conveying, or authorizing or requiring the creation or conveyance of any real estate, or interest therein, it shall be the duty of the courts of justice to carry into effect the true interest of the parties, so far as such intent can be collected from the whole instrument, and so far as such intent is consistent with the rules of law.

Courts will try to give effect to the true intent of the parties. 23, 473 (36 N. W., 659). 4379. In the absence of stipulations to the contrary, the mortgagor of real estate retains the legal title and right of possession thereof.

Mortgagor not liable for rents and profits while in possession. 7, 453. And the mortgagee has no interest in the real estate which he can convey by lease. 10, 302 (4 N. W., 986). Mortgage does not convey title, but is a mere lien on property. And mortgagee does not become assignee of covenants running with the land. 11, 252 (9 N. W., 95). See 24, 463 (39 N. W., 418).

Secs. 4380 to 4390. "An act for the relief of occupants and claimants," etc. 1883, p. 249. In force February 23. (Repealing G. S., ch. 51.)

4380. That in all cases where any person claiming title to real estate, whether in actual possession or not, for which such person can show a plain and connected title, in law or equity, derived from the records of some public office, or from the United States, or from this state, or derived from any such person by devise, descent, deed, contract, or bond, such person or persons claiming or holding as aforesaid, shall not be evicted or turned out of possession of such real estate, nor shall his claim or title be set aside or canceled by any court in any proceedings brought or commenced by any person setting up and proving an adverse and better title or claim to such real estate, until such person claiming as aforesaid shall be fully paid the value of all lasting and valuable improvements made upon such real estate by such claimant or by those under whom he claims, and also for all taxes and assessments paid upon said real estate by such claimant, and the persons under whom he claims, with interest thereon at the same rate of interest as provided by law for delinquent taxes, and for all sums of money paid by such occupant or claimant, or those under whom he claims, to redeem such real estate from any sale or sales for non-payment of taxes previous to receiving actual notice by the commencement of suit on such adverse title or claim by which such eviction or cancellation may be had, unless such occupant or claimant shall refuse to pay the person so setting up and proving an adverse and better title the value of such real estate without improvements made thereon as aforesaid, upon the demand of the successful claimant as hereinafter provided.

Vendee under contract providing for a forfeiture of all improvements in case of non-performance on his part, is not, in case of eviction, entitled to benefits of this act. 12, 290 (11 N. W., 334). See 19, 452 (27 N. W., 442); 19, 705 (28 N. W., 301).

4381. [Occupants.-Who are.]-Any person in possession of or claiming any real estate under a certificate of entry or under the homestead or pre-emption laws of the United States, as well as the persons enumerated in the first section of this act, shall be considered as having sufficient title to demand the value of improvements, and to demand the amount of all taxes and assessments paid by such claimant or those under whom he claims, under the provisions of the first section of this act. The tax certificates and the tax receipts of the county treasurer shall, for the purposes of this and the preceding section provided, be conclusive evidence of the assessment, levy, and payment of the taxes on such real estate, for the purpose of ascertaining the amount of the taxes paid by such occupant or claimant. A person claiming under a tax deed is entitled to pay for improvements, etc. 26, 670 (42 N. W., 875).

4382. The court rendering judgment or decree in any case provided for by this act against any occupant or claimant shall, at the request of such occupant or claimant, issue an order to the sheriff of the county wherein such real estate is situated,

commanding him to summons three disinterested freeholders of such county, whose duty it shall be to appraise such real estate and the improvements aforesaid at their cash value as hereinafter provided. Such appraisers shall take and subscribe an oath to impartially appraise the said real estate and improvements, which oath shall be filed with the clerk of the court issuing such order. The order thus issued to the sheriff shall be accompanied by written instructions from the court to the appraisers, necessary to carry out the provisions of this act. Such appraisers shall be allowed the same fees and mileage as jurors are allowed in the district court.

Final judgment should be rendered prior to taking any steps for the ascertainment of the value of the improvements. And where party in ejectment elects to proceed under this statute, he is estopped from having original judgment reviewed on error. 11, 375 (9 N. W., 546).

4383. The appraisers shall jointly proceed at once, after service of said order on them, to view the real estate in question, and to assess the value of all lasting and valuable improvements on the same, previous to the party receiving actual notice as aforesaid of said adverse claim. They shall also assess the net anual value of the rents and profits which the occupant or claimant has received after having received notice of the successful claimant's title by service of process, and they shall deduct the amount thereof from the estimated value of the improvements aforesaid. They shall also assess the value of the land in question at the time such occupant went into possession thereof, or such claimant commenced to pay the tax thereon, as the same may be.

12, 544 (11 N. W., 851).

4384. The appraisers shall make report in writing of their appraisement and deposit the same in a sealed envelope wi ĥ the clerk of such court, within the time required by the court, and if either party shall think himself aggrieved by such appraisement he may file objections thereto at the term to which the same is returned, if returned in term time, ten days before such term adjourns, and if such report is made in vacation, or if made in term time, less than ten days before such term adjourns, then such objections may be filed on or before the second day of the term next ensuing. Upon the hearing of such objections, if the court is of the opinion that injustice has been done by such appraisement, the same shall be set aside and a new appraisement ordered. New appraisers shall thereupon be summoned and like proceedings had as herein before provided.

4385. If no objections are made to the appraisement, or if made and overruled, the court shall proceed without pleadings to ascertain the amount of taxes paid by the occupant or claimant, with interest as herein before provided for. If the appraisement reported to the court shall show a sum in favor of the occupant or claimant against whom such a decree or judgment is rendered, the amount of taxes and interest as ascertained by the court shall be added thereto, and decree entered therein in favor of such unsuccessful occupant or claimant against the said person proving a better title. Such decree shall constitute and be a lien upon said real estate, but in case the appraisement shall show a balance due the person proving a better title, the amount of such balance shall be deducted from the amount found due the occupant or unsuccessful claimant for taxes and interest, and decree be entered for the difference in favor of such occupant or claimant. If upon the whole finding there shall appear a balance due the successful claimants, judgment shall be rendered in his favor therefor.

4386. If upon the final hearing there shall be found a balance in favor of the occupant or unsuccessful claimants, the person proving the better title may either demand of the occupant or claimant the value of the real estate without improvements as shown by the appraisement, and tender a general warranty deed for the

real estate in question to such occupant or claimant or he may pay into court the balance so found due such occupant or claimant within such time as the court shall allow in its final decree.

4387. If the successful claimant shall elect to pay and does pay to the occupant or claimant the balance found due him on the final hearing within such time as the court shall direct, then a writ of possession shall be issued in his favor against such occupant, or decree shall be entered against such unsuccessful claimant, as the case may require.

4388. If the successful claimant shall elect to receive the value of the real estate without improvements, to be paid by the occupants or claimant within such time as the court shall direct, and shall tender a general warranty deed for such real estate to the occupant or claimant, and such occupant or claimant shall refuse or neglect to pay said sum of money to the successful claimant within the time allowed by the court for that purpose, then such successful claimant shall deposit with the clerk of the court the amount found due the occupant or claimant, and thereupon a writ of possession shall be issued in favor of such successful claimants, or decree shall be entered in his favor as the case shall require.

4389. The occupant or claimant shall in no case be evicted from the possession, or deprived of his right in the premises, except as provided in the two preceding sections, and in case the successful claimant shall neglect to elect to take said real estate with improvements, or to convey the same to the occupant or claimant, within such time as the court shall direct, then decree shall be entered in favor of the occupant or claimant upon his paying into court the value of the real estate without improvement. Such decree shall have the effect to transfer and convey to such occupant or claimant the title and rights of the successful claimant.

4390. This act shall apply to all suits now pending or hereafter brought, wherein any of the claims or rights herein set forth shall be demanded, and such demand for improvements or taxes may be made upon the overruling by the court of a motion for a new trial, or in case the suit is one in equity, then such demand may be made within three days after the entry of decree. In suits now disposed of in which the unsuccessful occupant or claimant would have been entitled to the relief herein provided for, such occupant or claimant may make such application to the court within six months after this act shall become a law; Provided, however, That all of the provisions of this act shall be limited and restricted to those cases where the title to the real estate in controversy is derived from some source other than that which comes from such tax titles, tax certificates, tax receipts, or the payment of taxes by any person claiming any interest in or title to such real estate, by reason of such tax deeds, or tax titles, tax certificates, or tax receipts.

Request may be made after decision in supreme court in original case. 17, 455 (23 N. W., 353, 511). "Such tax titles," etc., construed. 26, 673 (42 N. W., 875).

Secs. 4391 to 4395. "An act to quiet title to real estate." 1873. In force February 24. G. S., p. 882.

4391. That an action may be brought and prosecuted to final decree, judgment, or order by any person or persons, whether in actual possession or not, claiming title to real estate against any person or persons who claim an adverse estate or interest therein, for the purpose of determining such estate or interest, and quieting the title to said real estate.

Party not in possession must have the legal title; party in possession without legal title must have been in possession for considerable time and that his right is threatened, or must have established his right by repeated litigation. 7,376. One having but a leasehold interest may proceed under this act. 15, 67 (17 N. W., 257). Neither party entitled to two trials. 28, 670 (44 N. W., 872). Either party is entitled to a jury. 25, 184 (41 N. W., 117); 24, 317 (38 N. W., 797).

4392. All such pleadings and proofs and subsequent proceedings shall be had in such action now pending or hereafter brought as may be necessary to fully settle and determine the question of title between the parties to said real estate, and to decree the title to the same, or any part thereof, to the party entitled thereto; and the court may issue the appropriate order to carry such decree, judgment, or order into effect.

Plaintiff must set out the title he calls a cloud. 15, 68 (17 N. W., 257). See 24, 655 (39 N. W., 835).

4393. Any person or persons having an interest in remainders or reversion in real estate shall be entitled to all the rights and benefits of this act.

See 28, 653 (44 N. W., 991).

4394. If the defendant or any one of several defendants shall appear and disclaim all title and interest adverse to the plaintiff such defendant shall recover his costs. In other cases the costs shall abide the final decree, judgment, or order in the action.

4395. The provisions of this act shall not in any respect apply to the settlement, partition, or division of real estate among the heirs of a decedent where the same is provided for by the intestate laws of this state.

Secs. 4396 to 4399. "An-act-restricting non-resident aliens and corporations not incorporated under the laws of Nebraska in their right to acquire and hold real estate," etc. 1889, p. 483. In force March 16. (Repealing chapters 62 and 65, Laws 1887).

4396. Non-resident aliens and corporations not incorporated under the laws of the state of Nebraska are hereby prohibited from acquiring title to or taking or holding any lands or real estate in this state by descent, devise, purchase, or otherwise, only as hereinafter provided, except that the widow and heirs of aliens who have heretofore acquired lands in this state under the laws thereof, may hold such lands by devise or descent for a period of ten (10) years and no longer, and if at the end of such time herein limited, such lands, so acquired, have not been sold to a bona fide purchaser for value, or such alien heirs have not become residents of this state, such lands shall revert and escheat to the state of Nebraska, and it shall be the duty of the county attorney in the counties where such lands are situated to enforce forfeitures of all such lands as provided by this act.

State alone can divest title. 28, 672 (44 N. W., 873.)

4397. Whenever any such lands shall revert and escheat to the state of Nebraska, as provided in this act, it shall be the duty of the county attorney of the county in which such lands are situated, to proceed against such alien in the district court of the county where the land is situated for the purpose of having such forfeiture declared. Service of summons may be had upon the non-resident alien defendants by publication as provided in the statutes of Nebraska for the service of summons by publication in cases of foreclosure of mortgages, and the court shall have power to hear and determine the questions presented in such cases and to declare such lands escheated to the state; and when such forfeiture shall be declared by the district court, it shall be the duty of the clerk of the court to notify the governor of the state that the title to such lands is vested in the state by the decree of the said court; and the clerk of the court shall present the auditor of public accounts with the bill of costs incurred by the county in prosecuting such case, who shall issue a warrant to the clerk of the court on the state treasury to repay the county for such costs incurred. The heirs or persons who would have been entitled to such lands, shall be paid by the state of Nebraska the full value thereof, as ascertained by appraisement upon the oaths of the judge, treasurer, and clerk of the county where such lands lie, and such lands shall then become subject to the law,

and shall be disposed of as other lands belonging to the state; Provided, That the expense of the appraisement shall be deducted from the appraised value of the land.

4398. Any non-resident alien who owns land in this state at the time this act takes effect, may dispose of the same during his life to bona fide purchasers for value, and may take security for the purchase money with the same rights as to securities as a citizen of the United States.

4399. This act shall not, nor shall anything in the statutes of Nebraska, prevent the holders, whether non-resident aliens or corporations not organized under the laws of the state of Nebraska, of liens upon real estate or any interest therein, whether heretofore or hereafter acquired, from holding or taking a valid title to the real estate subject to such liens, nor shall it prevent any such alien or corporation from enforcing any lien or judgment for any debt or liability now existing, or which may hereafter be created, nor from becoming a purchaser at any sale made for the purpose of collecting or enforcing the collection of such debt or judgment; Provided, however, That all lands so acquired shall be sold within ten (10) years after the title thereto shall be perfected in such non-resident alien or foreign corporation, and in default of such sale within such time, such real estate shall revert and escheat to the state of Nebraska, as provided in this act; Provided further, That the provisions of this act shall not apply to the real estate necessary for the construction and operation of railroads; And provided further, That nothing in this act shall be construed to prohibit any non-resident alien or foreign corporation from purchasing and acquiring title to so much real estate as shall be necessary for the purpose of erecting and maintaining manufacturing establishments; And provided further, That the provisions of this act shall not apply to any real estate lying within the corporate limits of cities and towns.

Secs. 4400 to 4404. "An act to provide security to the public against errors, omissions, and defects in abstracts of title to real estate and for the use of abstracts in evidence." 1857, p. 565. In force July 1.

4400. It shall be unlawful for any person or persons to engage in the business of compiling abstracts of titles to real estate in the state of Nebraska, and demand and receive pay for the same, without first filing in the office of the county judge of the county in which such business is conducted, a bond to the state of Nebraska in the penal sum of ten thousand dollars ($10,000), with not less than three sureties, residents of the county, to be approved by such county judge, conditioned for the payment by such abstracters of any and all damages that may accrue to any party or parties by reason of any error, deficiency, or mistake in any abstract or certificate of title made and issued by such person or persons.

4401. When any abstracter shall have duly filed his bond as above provided, he shall be entitled to receive a certificate from such county judge that said bond has been by him duly approved and filed for record, which certificate shall be valid so long as such abstracter shall maintain his surety upon the bonds, as herein provided for, unimpaired, and the possession of such valid certificate, at the date of issuance of any abstract, shall entitle such abstract of title to real estate, certified to and issued by such abstracter, to be received in all courts as prima facie evidence of the existence of the record of deeds, mortgages, and other instruments, conveyances, or liens affecting the real estate mentioned in such abstract, and that such record is as described in said abstract of title.

4402. Any party to a civil action who may desire to use in evidence at the trial thereof any abstract of title to real estate as herein provided, shall furnish to the opposing party or his attorney a copy of such abstract at least three days before the trial of said action, and in case such real estate be not in the county where such trial