§ 43-11. Hearing and decree.
§43‑11. Hearing and decree.
(a) Referred toExaminer. Upon the return day of the summons the petition shall be set downfor hearing upon the pleadings and exhibits filed. If any person claiming aninterest in the land described in the petition, or any lien thereon, shall filean answer, the petition and answer, together with all exhibits filed, shall bereferred to the examiner of titles, who shall proceed, after notice to thepetitioner and the persons who have filed answer or answered, to hear the causeupon such parol or documentary evidence as may be offered or called for andtaken by him, and in addition thereto make such independent examination of thetitle as may be necessary. Upon his request the clerk shall issue a commissionunder the seal of the court for taking such testimony as shall be beyond thejurisdiction of such examiner.
(b) Examiner's Report. The examiner shall, within 30 days after such hearing, unless for good causethe time shall be extended, file with the clerk a report of his conclusions oflaw and fact, setting forth the state of such title, any liens or encumbrancesthereon, by whom held, amount due thereon, together with an abstract of titleto the lands and any other information in regard thereto affecting itsvalidity.
(c) Exceptions toReport. Any of the parties to the proceeding may, within 20 days after suchreport is filed, file exceptions, either to the conclusions of law or fact.Whereupon the clerk shall transmit the record to the judge of the superiorcourt for his determination thereof; such judge may on his own motion certifyany issue of fact arising upon any such exceptions to the superior court of thecounty in which the proceeding is pending, for a trial of such issue by jury,and he shall so certify such issue of fact for trial by jury upon the demand ofany party to the proceeding. If, upon consideration of such record, or therecord and verdict of issues to be certified and tried by jury, the title befound in the petitioner, the judge shall enter a decree to that effect,ascertaining all limitations, liens, etc., declaring the land entitled toregistration accordingly, and the same, together with the record, shall bedocketed by the clerk of the court as in other cases, and a copy of the decreecertified to the register of deeds of the county for registration ashereinafter provided. Any of the parties may appeal from such judgment to theappellate division, as in other special proceedings.
(d) No Judgment byDefault. No judgment in any proceeding under this Chapter shall be given bydefault, but the court must require an examination of the title in everyinstance except as respects the rights of parties who, by proper pleadings,admit the petitioner's claim. If, upon the return day of the summons and the dayupon which the petition is set down for hearing, no answer be filed, the clerkshall refer the same to the examiner of titles, who shall, after notice to thepetitioner, proceed to examine the title, together with all liens orencumbrances set forth or referred to in the petition and exhibits, and shallexamine the registry of deeds, mortgages, wills, judgments, mechanic liens andother records of the county, and upon such examination he shall, ashereinbefore provided, report to the clerk the condition of the title, with anotice of liens or encumbrances thereon. The examiner shall have power to takeand call for evidence in such case as fully as if the application were beingcontested. If the title shall be found to be in the petitioner, the clerk shallenter a decree to that effect and declaring the land entitled to registration,with entry of any limitations, liens, etc., and shall certify the same forregistration, as hereinbefore provided, after approval by the judge of thesuperior court. (1913, c. 90, s. 8; C.S., s. 2387; 1969, c. 44, s.48.)