CHAPTER 3. EJECTMENT AND QUIET TITLE
IC 32-30-3
Chapter 3. Ejectment and Quiet Title
IC 32-30-3-1
Action for ejectment or recovery of possession of real estate;plaintiff's affidavit
Sec. 1. (a) This section applies to all actions:
(1) in ejectment; or
(2) for the recovery of possession of real estate.
(b) At the time of filing a complaint or at any time beforejudgment, a plaintiff may file with the clerk of the court in which theaction is filed or pending an affidavit stating the following:
(1) The plaintiff is entitled to possession of the propertydescribed in the complaint.
(2) The defendant has unlawfully retained possession of theproperty described in the complaint.
(3) The estimated value of the property described in thecomplaint.
(4) The estimated rental value of the property described in thecomplaint.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-2
Order to appear; order to show cause; requirements
Sec. 2. (a) Upon the filing of an affidavit described in section 1 ofthis chapter, the clerk shall issue an order for a time fixed by thejudge directing the defendant to appear to controvert the affidavit orto show cause why the judge should not remove the defendant fromthe property and put the plaintiff in possession. The order to showcause must direct the time within which the order must be served onthe defendant and set forth the date, time, and place for the hearing,which may take place no earlier than five (5) business days after thedate of service on the defendant.
(b) The order to show cause must state the following:
(1) The defendant may file supporting affidavits with the court.
(2) The defendant may appear and present supporting testimonyat the hearing on the order to show cause.
(3) The defendant may file with the court a written undertakingto stay the delivery of the property under this chapter.
(4) The judge may issue a judgment of possession in favor ofthe plaintiff if the defendant fails to appear at the hearing.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-3
Preliminary order for possession; required findings
Sec. 3. After reviewing the complaint, affidavits, and otherevidence or testimony, the court may issue an order for possessionbefore the hearing if probable cause appears that:
(1) the property is in immediate danger of destruction, seriousharm, or sale to an innocent purchaser; or (2) the holder of the property threatens to destroy, harm, or sellthe property to an innocent purchaser.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-4
Order for possession; expedited hearing; temporary restrainingorders instead of order for possession
Sec. 4. (a) If a court issues an order of possession under section3 of this chapter, the defendant or other person from whompossession of the property has been taken may apply to the court foran order shortening the time for hearing on the order to show cause.The court may shorten the time for the hearing and direct that thematter be heard on at least forty-eight (48) hours notice to theplaintiff. An order of possession issued under section 3 of thischapter must direct the sheriff or other executing officer to hold theproperty until further order of the court.
(b) If a court does not issue an order of possession under section3 of this chapter, the court may, in addition to issuing an order toshow cause, issue temporary restraining orders against the defendantas needed to preserve the rights of the parties with respect to theproperty and the status of the property. The court shall issue thetemporary restraining orders in accordance with the rules of thesupreme court governing the issuance of injunctions.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-5
Hearing on order to show cause; court determinations;prejudgment orders; appointment of receiver
Sec. 5. (a) After the hearing on the order to show cause, the courtshall:
(1) consider the pleadings, evidence, and testimony presentedat the hearing; and
(2) determine with reasonable probability which party isentitled to possession, use, and enjoyment of the property.
The court's determination is preliminary pending final adjudicationof the claims of the parties. If the court determines that the action isan action in which a prejudgment order of possession in plaintifffavor should issue, the court shall issue the order.
(b) The court may issue the prejudgment order of possession infavor of the plaintiff if the defendant fails to appear at the hearing onthe order to show cause.
(c) If the plaintiff's property has a peculiar value that cannot becompensated by damages, the court may appoint a receiver to takepossession of and hold the property until further order of the court.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-6
Order of possession; prerequisites
Sec. 6. A court may not issue an order of possession in favor of aplaintiff other than an order of final judgment until the plaintiff has
filed with the court a written undertaking in an amount fixed by thecourt and executed by a surety to be approved by the court bindingthe plaintiff to the defendant in an amount sufficient to assure thepayment of any damages the defendant may suffer if the courtwrongfully ordered possession of the property to the plaintiff.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-7
Order of possession; requirements
Sec. 7. The court shall direct the order of possession to the sheriffor other officer charged with executing the order and within whosejurisdiction the property is located. The order of possession must:
(1) describe the property;
(2) direct the executing officer to:
(A) seize possession of the property unless the court issuedthe order without notice to the parties; and
(B) if the defendant has not filed a written undertaking asprovided in section 8 of this chapter, put the plaintiff inpossession of the property by removing the defendant andthe defendant's personal property from the property;
(3) have attached a copy of any written undertaking filed by theplaintiff under section 6 of this chapter; and
(4) inform the defendant of the right to except to the suretyupon the plaintiff's undertaking or to file a written undertakingfor the repossession of the property as provided in section 8 ofthis chapter.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-8
Return of possession to defendant; period for return; requiredsurety; notice; proof of service
Sec. 8. (a) Before the hearing on the order to show cause or beforefinal judgment, and within the time fixed in the order of possession,the defendant may require the return of possession of the property byfiling with the court a written undertaking executed by a surety to beapproved by the court stating that the defendant is bound in anamount determined by the court sufficient to assure the payment ofcosts assessed against the defendant for the wrongful detention of theproperty.
(b) If a defendant files an undertaking under this section, thedefendant shall:
(1) serve a notice of filing the undertaking on the executingofficer and the plaintiff or the plaintiff's attorney; and
(2) file with the court proof of service of the notice of filing theundertaking.
(c) If a defendant files an undertaking before the hearing on theorder to show cause, the court shall terminate the hearing unless theplaintiff takes exception to the surety.
(d) If the property is in the possession of the executing officerwhen the defendant files the undertaking, the court shall return
possession of the property to the defendant not more than five (5)days after service of notice of the filing of the undertaking on theplaintiff or the plaintiff's attorney.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-9
Order of possession; delivery; service
Sec. 9. (a) If a defendant or the defendant's attorney is in opencourt when the court issues the order of possession, a copy of theorder shall be delivered to the defendant and the delivery noted in theorder book.
(b) If the defendant and the defendant's attorney are not present,sufficient copies of the order shall be delivered to the sheriff or otherexecuting officer. The executing officer shall, without delay, serveupon the defendant a copy of the order of possession by deliveringthe order to the defendant personally or to the defendant's agent. Ifthe executing officer cannot find the defendant or the defendant'sagent, the executing officer shall leave the order at the defendant'susual place of abode or with some person of suitable age anddiscretion. If the defendant and the defendant's agent do not have anyknown usual place of abode, the executing officer shall mail theorder to the defendant's last known address.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-10
Removal of occupants within 48 hours service
Sec. 10. If the property is in the possession or control of thedefendant or the defendant's agent, the executing officer shall takethe property into custody and remove the occupants from theproperty not earlier than forty-eight (48) hours after the order ofpossession is served on the defendant or the defendant's agent.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-11
Executing officer's return of order of possession
Sec. 11. The executing officer shall return the order of possessionwith the proceedings endorsed on the order to the court in which theaction is pending not more than five (5) days after taking intocustody the property described in the order.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-12
Final judgment supersedes prior orders
Sec. 12. A final judgment supersedes any:
(1) prejudgment order for possession;
(2) temporary restraining order; or
(3) order temporarily changing possession of property;
issued under this chapter.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-13
Actions in plaintiff's own name
Sec. 13. Any person having a right to:
(1) recover the possession of; or
(2) quiet title to;
real estate in the name of any other person has a right to recoverpossession or quiet title in the person's own name. An action may notbe defeated or reversed if the plaintiff could have successfullymaintained the action in the name of another person to inure to theplaintiff's benefit.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-14
Defendants in certain actions; plaintiff's complaint; plaintiff'saffidavit; notice; venue
Sec. 14. (a) This section applies to the following proceedingsbrought in a state court concerning real estate or any interest in realestate located in Indiana:
(1) An action to:
(A) quiet or determine title to;
(B) obtain title or possession of; or
(C) partition;
real estate.
(2) An action by an executor or administrator to:
(A) sell real estate to satisfy the debts of a decedent; or
(B) enforce or foreclose a mortgage or lien on real estate.
(b) A person who institutes a proceeding described in subsection(a) may, under a circumstance set forth in subsection (c), name as adefendant any of the following individuals:
(1) A person:
(A) who may have an interest in real estate that is the subjectof the proceeding; and
(B) whose name appears of record in a record concerning thereal estate.
(2) A person who bears one of the following relationships to aformer owner or encumbrancer of the real estate:
(A) Spouse.
(B) Widow or widower.
(C) Heir or devisee.
The person who institutes the proceeding does not have to know thename of a person described in subdivision (2).
(c) A person who institutes a proceeding described in subsection(a) may name an individual described in subsection (b) as adefendant if public records in the county in which the real estate thatis the subject of the proceeding is located any of disclose thefollowing circumstances:
(1) There is a break or hiatus in the record title of real estate.
(2) There exists:
(A) a defect in;
(B) an apparent defect in; or (C) a cloud upon;
the title of the real estate due to a defective or inaccurate legaldescription of the real estate.
(3) There is no record that a grantor or mortgagor wasunmarried when the deed to or mortgage on the real estate wasexecuted.
(4) An instrument affecting the real estate, including a deed,will, or mortgage, was not properly executed.
(5) A mortgage, vendor's lien, or other lien or encumbranceaffecting the real estate was not properly released.
(6) The person instituting the proceeding does not know:
(A) the name of another person who may claim an interest inthe real estate based on the other person's relationship to aformer owner, mortgagee, or encumbrancer of the realestate; or
(B) whether another person, including a person described inclause (A), who may have an interest in the real estate isalive or dead.
(d) The plaintiff in a proceeding described in subsection (a) maystate the following in the complaint:
(1) The plaintiff asserts title to the real estate that is the subjectof the proceeding against all other persons.
(2) The purpose of the proceeding is to quiet the title to the realestate.
(3) The plaintiff has named as defendants all persons whom theparty knows may have a claim to or interest in the real estate.
(e) The plaintiff shall file with the complaint an affidavit thatstates the following:
(1) The complaint contains the names of all persons disclosedby public record by or through whom a claim or interest in thereal estate may be asserted.
(2) The plaintiff does not know the following information abouta person described in subdivision (1):
(A) Whether the person is alive or dead.
(B) The person's legal residence.
(C) The person's marital status.
(D) If the person is or has been married, the name or addressof the person's spouse, widow, or widower.
(E) If the person is dead, whether the person has left anyheirs or devisees.
(F) The name or legal residence of an heir or devisee.
(3) The plaintiff claims full and complete right and title in thereal estate that is the subject of the proceeding described insubsection (a).
(4) The plaintiff intends to quiet title to the real estate throughthe proceeding.
(f) After the plaintiff files the complaint and affidavit, the plaintiffshall file an affidavit for publication of notice under IC 34-32-1.
(g) After the plaintiff files the affidavit for publication of noticedescribed in subsection (f), the clerk of the county in which the real
estate that is the subject of the proceeding described in subsection (a)is located shall publish notice of the following:
(1) The filing and pendency of the proceeding.
(2) The date on which the proceeding will take place.
(3) Designations and descriptions of any defendant whose nameand legal residence are unknown.
(4) A legal description of the real estate.
(5) The purpose of the proceeding, which is to quiet title to thereal estate.
(h) After the clerk publishes notice as set forth in subsection (g),the clerk shall provide proof of the publication to the court in whichthe proceeding described in subsection (a) is pending. Not earlierthan thirty (30) days after the last publication of notice, the courtmay hear and determine all matters in the proceeding as if theplaintiff had known and sued all possible claimants by their propernames. All decrees, orders, and judgments issued by the court arebinding and conclusive on all parties and claimants. The proceedingshall be taken as a proceeding in rem against the real estate.
(i) If the real estate that is the subject of the proceeding describedin subsection (a) is located in more than one (1) county, the plaintiffmay file a complaint in a court located in any county in which thereal estate is located. The plaintiff may not file a complaint in morethan one (1) court. The plaintiff shall publish notice of the complaintin each county in which the real estate is located. The publishednotice in each county shall contain the following:
(1) The legal description of the real estate that is located in thatcounty.
(2) The other counties in which the real estate is located.
(3) Notice that a certified copy of the final judgment in theproceeding will be filed, not more than three (3) months afterthe judgment is entered, in the recorder's office in each countyin which the real estate is located.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-15
Statutory construction
Sec. 15. Section 14 of this chapter may not be construed tocontravene or repeal any other Indiana law concerning title to realestate or suits or actions affecting title to real estate. Section 14 ofthis chapter supplements laws existing on April 26, 1915.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-16
Action to quiet title; service
Sec. 16. (a) In a suit to quiet title to real estate in a state court, theplaintiff shall serve:
(1) all resident and nonresident defendants whose residence isknown; and
(2) all defendants whose residence is unknown.
(b) Service on a known defendant by: (1) the defendant's individual name;
(2) the name by which the defendant appears of record;
(3) the name by which the defendant is commonly known; or
(4) the defendant's surname if the defendant's first name isunknown;
is sufficient, legal, and binding on and against all persons claimingfrom, through, or under the defendant.
(c) If a plaintiff serves a defendant by the defendant's surnameonly, the plaintiff or the plaintiff's attorney shall file an affidavitstating that the plaintiff does not know and has not, after diligentinquiry, been able to ascertain the first name of the defendant.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-17
Entry of orders and decrees in civil order book; quiet title record;index requirements
Sec. 17. (a) The clerk of a court shall enter in the civil order bookall orders and decrees in any suit to quiet the title to real estate. Aftera court enters final judgment in a proceeding, the clerk shall certifya copy of the final judgment and deliver the certified copy to thecounty recorder. The clerk shall include the costs of a transcript ofthe proceedings and the recording fees in the costs of the proceeding.
(b) A county recorder shall procure a substantially bound bookthat is the size and quality of the county deed records. The book shallbe known as the "Quiet Title Record". The Quiet Title Record mustcontain a transcript of each proceeding and an index to eachtranscript. The index must contain the following:
(1) An alphabetical list of plaintiffs.
(2) The date of filing of the transcript.
(3) The date of the final judgment.
(4) The date on which the final judgment was recorded.
(5) A brief description of the real estate that was the subject ofthe proceeding.
(6) The book and page on which the final judgment is recorded.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-18
Presumption of death of nonresident; circumstances; intestatesuccession of title; vesting in nonresident's heirs
Sec. 18. (a) A nonresident who, if alive, would be entitled to takeand to own real estate in Indiana by descent or devise is presumeddead if the following conditions are met:
(1) The nonresident has been absent from the nonresident's lastplace of residence in any other state or country for seven (7)years.
(2) A spouse, parent, child, or sibling of the nonresident has notheard from the nonresident for seven (7) years.
(b) The real estate that a nonresident described in subsection (a)otherwise would have taken descends from the nonresident to thenonresident's heirs under IC 29. (c) Title that passes under subsection (b) vests in a nonresident'sheirs upon full compliance with the provisions of section 19 of thischapter.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-19
Procedure to claim title from nonresident presumed dead
Sec. 19. (a) A person who claims real estate under section 18 ofthis chapter may file a verified complaint in the circuit or superiorcourt of the county in which the real estate is located. The complaintmust:
(1) name as a defendant the nonresident who is presumed deadunder section 18 of this chapter;
(2) particularly describe the real estate; and
(3) contain a statement of the facts required by section 18 ofthis chapter.
(b) Notice of the pendency of the action, including the date onwhich the court shall hear the complaint filed under subsection (a),must be published in a daily or weekly newspaper of generalcirculation that is printed and published in the county seat of thecounty in which the real estate is located. If a newspaper does notexist, notice must be published in a newspaper that is printed andpublished in the county in which the real estate is located. Noticemust also be published in a newspaper of general circulation that isprinted and published in the county seat of the county in which thedefendant last resided. If a newspaper is not printed and published inthat county seat, then notice must be published in a newspaper thatis printed and published in the county seat nearest to the county inwhich the defendant last resided.
(c) Prima facie proof of publication of notice as required bysubsection (b) consists of:
(1) affidavits of the publishers of the newspapers in which thenotice was published; and
(2) a printed copy of the published notice.
(d) The court shall hear the complaint filed under subsection (a)not earlier than sixty-five (65) days after notice was first publishedunder subsection (b). If the court finds that:
(1) the defendant received sufficient notice under subsection(b); and
(2) the facts alleged in the complaint are true;
the court shall enter judgment quieting the title to the real estate infavor of the plaintiff.
(e) A judgment entered under subsection (d) becomes final andabsolute three (3) years after the date it was entered unless, withinthose three (3) years, the defendant appears and moves to vacate thejudgment.
As added by P.L.2-2002, SEC.15.
IC 32-30-3-20
Action to quiet title of real estate exempt from sale on execution Sec. 20. (a) A resident householder in Indiana who may claim realestate owned by the householder exempt from sale on execution mayquiet the title to the real estate against any judgment or lien.
(b) The complaint in an action described in subsection (a) muststate the following:
(1) The ownership of the real estate.
(2) The existence of a judgment against the real estate.
(3) The right of the owner to claim the real estate exempt fromsale on execution.
(c) In an action described in subsection (a), the title to the realestate may be quieted against a judgment whether the householderhas executed the judgment or has filed a schedule claiming anexemption from sale on execution if the court finds that the owner'sinterest, in value, of the real estate does not at the time of the hearingexceed any mortgages, tax, or assessment on the real estate by morethan seven hundred dollars ($700).
As added by P.L.2-2002, SEC.15.
IC 32-30-3-21
Valuation of exempt real estate; limitation
Sec. 21. At the hearing under section 20 of this chapter, the courtshall determine the value of the householder's interest in the realestate and shall set forth this amount in the decree quieting the titleto the real estate. While the householder owns the real estate, theamount shall be charged against any other claim of exemption madeby the householder to limit the householder's exemption in the realestate from sale on execution or other final process to the amountallowed by law.
As added by P.L.2-2002, SEC.15.