Page:United States Statutes at Large Volume 47 Part 1.djvu/1005

 72d C ONGRESS. SESS. II. CH. 127 . FEBRUARY 27, 1933 . 981 involved, suc h wil l, or instrument pu rpo rt ing to be a will, is admis- sible in evidence ; and all questions concerning the validity of any gift, devise, bequest, or trust therein contained, save such as belong exclu sivel y to the proba te j urisd ictio n, s hall be d eterm ined in su ch Provisos. action : Provided, Th at if the said wi ll shall ha ve been admitted Con str uct ion of wil l. to pro ba te and interpreted by a decree of ,the dis tr ict court, which decree has become final, such interpretation shall be conclusive as to the proper construction of sa id will, or any pa rt thereof, so construed, in any action under this sec tion And provided, ho'iccever, Jury t rials. Tha t nothing herein contained shall be construed to deprive a par ty of the ri ght to a j ury trial in any cas e whe re by the law su ch right is now given. When plaintiff can SEC. 402. WHEN PLAINTLB'r' CAN NOT RECOVER COSTS. If the defend- not recover costs. ant in su ch action disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without ans we r, the plaintiff can not recover costs. SEC. 403. WHERE PLAINTIFF'S RIGHT TERMINATES PENDING SUIT WHAT where plaintiff's 7 right terminates pend- HE MAY RECovER .-In an action for the recovery of property, where ing suit, what he may the plaintiff shows a right to recover at the time the action was r8Coverg commenced ; but it appe ars that his r ight has termi nate d dur ing the pendency of the action, the verdict and judgment must be accord- ing to the fact, and the plaintiff may recover damages for with- holding the property. When value of im- SEC. 404 . WHEN VALUE Or IMPROVEMENTS CAN BE ALLOWED AS A provemenis can be SET-OFF .-When damages are claimed for withholding the property allowed as set-off . reco ver ed, upo n which permanent improvements ha ve bee n ma de 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 improveme nts must be allow ed as a s et-off ag ainst suc h damages. s ing,eto ., lan d SEC. 405 . AN ORDER MAY BE MA DE TO ALL OW A PART Y TO SURV EY AND in dis pu ey te, MEAS URE THE LAND IN DISP U -.r a-T he cou rt in which an action is pending for the recovery of real property, or for damages for an injury thereto, or the judge thereof may, on motion, upon notice by either party for good cause shown, grant an order allowing to su ch party the right to enter upon the property and make survey and measurement thereof, for the purpose of the action, even though entry for su ch purpose has to be made through other lands belonging to parties to the action. SEC. 406 . ORDER, WH AT TO CON TAIN, SERVED ; AND HOW SER VED ; IF UNNECES- Order, what to con- lain, service SARY IN JURY D ONE, THE PAR TY SUR VEYING TO BE LIABL E THER EFOR .-The for unn ecessary injury, 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, w ith necessary surveyors and assistants, and make such survey and measure ments ; bu t if any unn ecessa ry inj ury be done to the property he is liable therefor. SEC. 407. A MORTGAGE MUST NOT BE DEEMED A CONVEYANCE WHAT- Mortgage not a con- EV ER rrs TERMS .-A mortgage of real property shall not be deemed termveyasn .ce, whatever its a conve yance, whate ver its term s so as to e nable the ow ner of the mortgage to recover possession of the real property without a fore- closure and sale. SEC. 408 . WHEN COURT MAY GRANT INJUNCTION DURING FORECLO- foreclosure or after rsal •gg SURE OR AFTER SALE ON EXECUTION, BEFORE CONVEYANCE--The court on execution, before may, by injunction, on good cause shown , restrain the party in pos- conveyanc e. ses si on fr om do ing any act to the injury of real property during the foreclosure of a mortgage thereon ; or, after a sal e on ex ecu ti on, before a conv eyance.
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