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discharge of such mortgage, and a release and quit claim to the estate therein mentioned to be granted; and to acknowledge the same before a justice of the peace; which deed being recorded in the registry of deeds for the county where such estate is situate, shall effectually discharge such mortgage to all intents and purposes. Provided, however, that nothing in the act shall be construed to authorize any mortgagor, his heirs, executors administrators or assigns, to redeem any mortgaged premises, after the expiration of three years from the entry of the commonwealth by the treasurer, or his substitute, or any other person thereto authorized by law, upon the mortgaged premises, for the breach of the condition of the mortgage.

V. Of the equity of redemption.

Stat. 1785, c. 22, s. 2.

At what time the

deem.

By statute it is enacted, that all real estates conveyed or pledged by mortgage, or bargain and sale with defeazance, shall be redeemable by the mortgagor or vendor, mortgagor may rehis heirs, executors, administrators or assigns, on paying the moneys borrowed thereon, with interest, or performing the condition on which the same was mortgaged or conveyed, deducting the rents and profits the mortgagee, or any under him, may have received over and above the repairs and improvements made by him, unless the mortgagee, or person claiming under him, hath, by process of law, or by open and peaceable entry, made in the presence of two witnesses, taken actual possession thereof, and continued the possession peaceably three years. When the mortgagee enters after condition broken, the three years commence on that entry. before, the three years do not commence until notice by the mortgagee to the mortgagor, after the condition broken, that he shall hold the possession for the breach of the condition.

Newall ct al. v.
If he enter 3 Mass. Rep. 155.
Wright.

Bill in equity lies for

If the mortgagee enters and holds possession for condition broken, and the mortgagor, within the legal time the mortgagor.

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Stat. 1798, c. 77, s. 1.

Right of redemption.

Upon performance,

ance of the condition,

in such case.

of redemption, pays, or tenders the money due, or performs or tenders performance of the condition; and the mortgagee refuses to restore the possession to the mortgagor, a bill in equity lies either in the common pleas or supreme judicial court, whereby the mortgagee may be compelled to a restitution of the premises.

For by statute, where any mortgagee or vendee, claiming any lands or tenements granted upon condition by force of any deed of mortgage, or bargain and sale with defeazance, or any person claiming and holding under them, have lawfully entered and obtained, or shall lawfully enter and obtain the actual possession of such lands or tenements, for the condition broken, the mortgagor or vendor, or other person lawfully claiming under them, shall have right to redeem the same, at any time within three years next after such possession obtained, and not afterwards; and upon payment, or tendering of payment of the original debt and damages, with lawful interest and costs, or performing, or tendering performance of or tendering perform- such other condition, as the case may require, or such duty of the mortgagee part thereof as was remaining unpaid or unperformed, at the time of such entry, together with such further reasonable sums as may have been disbursed and expended in necessary repairs of fences and buildings, and for the advancing and bettering such estate, over and above what the rents and profits thereof, upon a just computation, shall amount to, to such mortgagee, vendee, or other person claiming and in possession as aforesaid, within the time aforesaid; such mortgagee, vendee, or other person claiming and in possession as aforesaid, to whom such tender has been or shall be made, shall be obliged to accept such payment, or other performance of the condition, and thereupon to restore and deliver possession of such estate, and seal, execute, acknowledge and deliver a good and sufficient deed in the law of release and quit claim, and all his rights therein, to the person making such tender, having lawful right to redeem the

same.

his

Ibid.

Bill of equity lies for

the other party re

sion of the estate on

performance, or tendering performance of the condition....

where triable....

Where returnable....

And if, on payment or tendering of payment, performing or tendering of performance as aforesaid, such mortgagee, vendee, or person lawfully claiming or holding the mortgagor, when under them, and in possession as aforesaid, doth, or shall fuses to restore possesrefuse or neglect to deliver possession, and release right in such estate as aforesaid; such mortgagor, vendor, or other person lawfully claiming as aforesaid, may have his bill in equity originally triable in the supreme judicial court, or court of common pleas in the county where the estate lies, and shall insert the same in a writ of attachment or original summons, returnable to the court whose seal it shall bear, and shall cause such writ to be served on the adverse party, as other writs of at- Service of the same. tachment, or original summons are, by law, to be served. Moreover, by the same statute, the justices of either of said courts are authorized to receive and hear every such cause as shall be brought before them as aforesaid; hear and try the and on consideration of the several pleas and allegations made by either party, (or by the party complaining, only, in case the other party, upon being duly called, does not appear, but makes default,) to decree and enter up judgment therein, agreeably to equity and good conscience, and to award execution accordingly.

And in case of the non-appearance of the party complained of, or of his refusal to accept such sum as the court shall adjudge to be due, or to accept such other

Ibid. s. 2.

Power of the court to

cause.

Ibid.

Judgment on non.

appearance of the res

pondent, or on his re

act or thing, as the court shall adjudge a reasonable and fusal to accept the

performance of the

equitable performance of the condition of the deed, and, condition.
thereupon, to restore possession and execute a release as
aforesaid, such sum being left in the custody of the court,
on behalf, and for the use of such party, or such other
act or thing, as the court shall order and direct being
done by the complainant; judgment shall be entered up
for the complainant to recover possession of such estate,
and execution shall issue accordingly.

And the court may, at their discretion, award costs to either party as equity may require.

Ibid.

Costs.

Ibid.

Appeal.

Ibid. s. 3.

Equity may be sold.

Ibid. s. 5.

Equity may be redeemed.

Provided, that nothing contained in the act shall be construed to prevent an appeal from the judgment of any court of common pleas, rendered upon any process given by force of the act.

Furthermore, by the same statute, all rights in equity of redeeming real estate mortgaged, shall be liable to be attached on mesne process, and taken in execution upon judgment for the payment of the just debts of the mortgagor or owner.

If the equity of redemption be taken and sold to satisfy an execution, our statute allows the debtor three years for the redemption of the equity. These three years begin to run from the time of the execution of the deed by the sheriff to the purchaser. In such case, the debtor must pay the sum which may, by such sale, have been satisfied on the execution, with the interest thereof, and also such sum, with the interest thereof, as the purchaser may have paid to the mortgagee, his heirs and assigns, deducting the rents and profits, the purchaser or any under him may have received over and above the repairs and betterments made by the purchaser or any under him.

TITLE CIX.

NUISANCE.

NUISANCE, in the legal acceptation of the word, signifies any thing that unlawfully worketh hurt, inconvenience or damage.

Nuisances are of two kinds, public and private. A private nuisance is such as affects an individual only; a public or common nuisance is such as is an annoyance to the community in general.

1. Of private nuisances to the habitation.

2. Of private nuisances to lands, ways, and water

courses.

3. Of public nuisances proceeding from the exercise of a noxious trade.

4. Of the continuation of such nuisances.

5. Of nuisances in highways, private-ways, and public places.

6. Of nuisances in rivers.

7. A summary process, by statute, for the removal of nuisances.

I. Of private nuisances to the habitation.

If a man builds a house so close to mine, that his roof overhangs my roof, and throws the water off his roof upon mine, this is a nuisance for which an action will lie. So likewise to erect a house or other building so near to mine, that it obstructs my ancient lights and windows, is a nuisance of a similar nature.

Formerly it was holden, that a party could not maintain an action of this kind, unless he had gained a right in the lights by prescription; and in conformity with this

2 Bl. Com. 216.

Ibid.

Ibid.

Ibid.

Selw. 972.

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