CHAP. 94. Time of redemption. Remedy, if debtor pay the mortgage. Mortgages and lands of banks porations may be sold on exe and other cor cution. 1821, 60, 14, 15. 13, 1823, 221, § 2. No conveyance by the corpora after seizure. SECT. 33. Any estate levied upon in the manner, prescribed in the two preceding sections, may, at any time within one year after the levy, be redeemed, in the same manner, as though the estate had not been under mortgage, at the time of the levy; and, if the debtor shall afterwards pay the amount due on such mortgage, he may recover the same of the creditor levying as aforesaid, in an action for money had and received. SECT. 34. The lands belonging to any manufacturing corporation, and the lands of any bank, and all the title and interest which any manufacturing company or bank has in lands, which have been, or may be, mortgaged for security of any debt due or assigned to such corporation or bank, may be seized and sold on execution at public auction; and the officer, having such execution, shall first give notice of the time and place of sale, fourteen days previous thereto, in two or more public places in the town or place where the lands lie, and also in some newspaper printed in the county, if there be any, otherwise, in the newspaper published by the printer to the state; and such officer may give an effectual deed of conveyance of such lands, titles, and interests; and the debts, secured to such corporation by such mortgage, and then due, shall pass to the purchaser of the mortgaged premises; and he or his legal representatives may, in his or their own name, recover such debt or such premises; and in such action a copy of the mortgage deed, duly certified by the register of deeds, shall be considered prima facie evidence of such deed, and of the note or obligation on which it is founded, and that the same were remaining due and unsatisfied at the time of trial; and the cashier or clerk of such bank or corporation shall, on reasonable request by the officer serving the execution, furnish him with a certified copy of such note or obligation, and a statement of all payments made thereon by such debtor. SECT. 35. No conveyance or transfer of such mortgage, or of or assignment the debt thereby secured, made by such bank or company, after tion to be valid, notice filed in the registry of deeds for said county, or otherwise given to the party to be affected thereby, of the seizure thereof on execution by such officer, for the purpose of sale, shall have any force or validity against the purchaser of such lands or interest, at auction as aforesaid. 1821, 60, 16. Sale of possessory interests, or equities of redemption. 1821, 60, § 17, 19. 16 Mass. 402. 3 Pick. 250. Notices of sale. 1821, 60, 617. 9 Mass. 242. 7 Greenl. 376. 1 Pick. 351. SECT. 36. All the right, title or interest any person owns, holds or claims, in virtue of a possession and improvement of lands, as expressed and described in the chapter on real actions, being chapter, one hundred and forty five, and also all rights of redeeming mortgaged real estate, may, at the election of the creditor, be taken and sold on execution, as hereinafter prescribed, instead of being appraised and set off on execution to the creditor; and the officer shall stand accountable for the surplus of the proceeds of the sale, if any, after satisfying the execution and legal charges. SECT. 37. In such case the officer shall give written notice of the time and place of sale, to the debtor, in person, or by leaving the same at his last and usual place of abode, if he is known to be an inhabitant of the state, and shall also cause notifications thereof to be posted in some public place in the town where the land lies, and in two adjoining towns, if there be so many; provided, that when the land is not within the limits of any incorporated town, CHAP. 94. notice shall be posted up in two public places in the shire town of the county, in which said land lies, in lieu of the posting aforesaid, all which shall be done thirty days at least before the day of sale; and shall also cause an advertisement of the time and place of sale, to be published three weeks successively before the sale, in some public newspaper, printed in the county where the land lies, if there be any such, if not, then in the state paper, if the execution debtor be not a resident of the county: provided, that if such debtor be not an inhabitant of the county where the land lies, the notice here required to be given to him shall be deemed sufficient, if forwarded to him by mail. 1821, 60, 17. SECT. 38. When the officer shall deem it for the interest of all Sale may be parties concerned to postpone the auction for want of purchasers, adjourned. or other sufficient cause, he may adjourn the sale for any time not exceeding seven days, and so from time to time, for like good cause, until the sale shall have been made; giving notice of each adjournment, by public proclamation, made at the same time. SECT. 39. The right to redeem shall be sold by the officer, at public auction, to the highest bidder, and he shall execute and deliver to the purchaser a good and sufficient deed thereof; which, being recorded in the registry of deeds for the county where the land lies, within three months of the sale, shall convey to the purchaser all the title, which the debtor had in the premises; and, if the highest bidder at any such sale, shall refuse, or be unable to pay the sum, for which such right in equity was sold, upon the demand of the officer, said officer shall, immediately, set up such right in equity again, and proceed to sell in the same manner, as though no bid had been previously made; and, in case said equity, at such second sale, shall not be sold for so great a sum as that, for which it was stricken off at the first sale, the person, to whom it was so struck off at the first sale, shall be accountable to the officer for the difference; and the officer may sue for and recover such difference, to be indorsed on said execution, or paid over to the debtor in case said execution shall be fully satisfied. 1821, 60, 17. 7 Proceedings at 9 Mass. 101. 8 Greenl. 246. on execution. SECT. 40. The seizure of the right, on the execution, shall be Time of seizure considered as made on the day, when the notice of the intended 16 Maine, 151. sale was given, as above prescribed, whether to the debtor, or by posting up notice, or by advertising in a newspaper, and hold the estate by force of the attachment, if any had been made thereon, though the levy should not be completed within thirty days next after the judgment; and the subsequent proceedings, and the return shall be valid, although made and done after the return day, or after the removal or other disability of the officer. demption. 19. 2 Greenl. 339. SECT. 41. The right of redemption, being so sold, may be Right of reredeemed by the debtor from the purchaser, or the person holding 1821, 60, 18, under him, at any time within one year after such sale, by paying or tendering the sum for which the same was sold, and on like con- 1 Fairf. 161. ditions as to improvements and repairs and rents and profits, as in 1 Pick. 485. case of redemption of lands, appraised and set off on execution; and the person holding the right shall release the same to the debtor, the deed to be prepared at the expense of the debtor. 3 Pick. 48. CHAP. 94. Remedy, if not release. SECT. 42. If the purchaser, or person holding under him, shall not, within ten days after a tender by the debtor, release to him the purchaser will right of redemption as before provided, or if there has been no tender, the debtor may have the same remedy for recovering his right of redemption, as is provided in like cases for the redemption of land mortgaged. 1833, 87. 12 Mass. 387. Right of re- SECT. 43. The right which any debtor may have of redeeming deeming an from the purchaser any equity of redemption, which may have been equity may be seized and sold. sold on execution against such debtor, and also the right which any such debtor may have, of redeeming, from a judgment creditor, any real estate, which may have been appraised, and set off on execution against such debtor, may be attached on mesne process, and sold on execution, and the same proceedings shall be had in respect to the sale and conveyance of either of said rights, as in the sale of an equity of redeeming mortgaged estate, and the purchaser shall have and exercise all the rights and remedies, which the debtor might, if no sale of it had been made; provided, however, that the debtor may have the same right of redeeming it, as is allowed by law, of redeeming mortgaged real estate. And the lien created by any attachment of such real estate or equity of redemption, before such sale or setting off on execution, shall continue and have effect upon the right of redeeming the same as aforesaid, in the order in which such attachments have been made, prior to any attachments, which may be made thereon, subsequently to such sale or setting off on execution. Charges of levy to be added to the execution. Rights of heirs and legal representaves. Levy of executions on estates of de SECT. 44. The lawful charges and fees of levying an execution, in of the above mentioned modes, shall be added to the amount any of the execution, and, in setting off, and the sale, of estates on execution, shall be considered as part thereof, and also in the redemption of the estate.. SECT. 45. Every thing in this chapter, which a creditor or debtor is required to do, or may do, may be done by their respective heirs or assigns, executors or administrators, as the case may be, or by any person lawfully claiming under them, respectively. SECT. 46. The real estate of a deceased testator or intestate may be taken in execution, on a judgment recovered against his ceased persons. lawful executor or administrator, for the proper debt of the deceased; and shall be appraised and set off or sold and redeemed, in like manner as if the same estate had been levied on, in the life time of such testator or intestate. 1821, 52, § 24. 4 Mass. 150. Effect of re SECT. 47. When the estate of a deceased person has been set demption there- off, or sold on execution, and has been redeemed by the heirs or of by heirs. devisee, or the assigns of either, as provided in the preceding section, the same shall not again be taken in execution for any other debts of the deceased, or in any manner be liable therefor. SECT. 48. Every widow shall be entitled to dower, in lands taken by execution from her husband, or by execution on a judgment against his executors or administrators, in like manner as though conveyed by the husband. SECT. 49. When real estate is taken to issued on a judgment in the name, or for the any satisfy an execution, use of the state, for sum of money, a writ of execution, in common form, shall issue, and be directed to the proper officer, and the lands of such judg- CHAP. 94. ment debtor may be taken on such execution and sold at auction; but, before proceeding to sell, the officer shall give notice of the intended sale, in like manner as is prescribed in the thirty seventh section of this chapter; except, that such notice shall be published also in the newspaper published by the printer to the state, and that the last publication in both newspapers shall be six days before the sale; and the officer, making such sale, shall make and execute to the purchaser a sufficient deed of the land sold; and the debtor shall have the same rights to redeem the same, in like manner, and on the same conditions, as a judgment debtor has, to redeem lands taken and set off on execution. CHAPTER 95. OF ESTATES IN DOWER, AND BY CURTESY, AND AT WILL. SECT. 1. Of what lands a woman is dowa- SECT. 13. She may waive provision in her SECTION 1. Every woman shall be entitled to her dower, at common law, in the lands of her husband, with the exception hereafter mentioned, to be assigned to her after his decease, unless lawfully barred thereof. of what lands a woman is 1821, 40, § 1. dowable. 4 Mass. 566. 10 Mass. 364. 22 Pick. 283. Of what she is not dowable. 15 Mass. 164. SECT. 2. A widow shall not be endowed of wild lands, of 5 Greenl. 479. which her husband shall die seized, nor of wild lands conveyed by him, although they should be cleared afterwards; but this shall not bar her right of dower in any wood lot or other land, used with the farm or dwelling house, though such wood lot or other land should 7 Pick. 143. have never been cleared. 1 Pick. 21. SECT. 3. The judge of probate for the county, in which the When judge of estate of the husband is settled, may assign dower to the widow in probate may assign dower. the lands of which the husband died seized, in whatever counties 9 Mass. 9. they may be, where her right of dower is not disputed by the heirs or devisees. SECT. 4. For the above purpose, the judge of probate may issue his warrant to three discreet and disinterested persons, empowering them to assign the dower by metes and bounds, when it can Mode of pro 12 Mass. 454, ceeding. CHAP. 95. be so done without prejudice to the whole estate: the commissioners to be first duly sworn before the judge of probate or a justice of the peace, to assign the same equally and impartially, and without favor and affection, as conveniently as may be, in one or more parcels, as shall be most for the interest of the parties. Special assignment, in certain cases. 1821, 40, § 3. Rights of wid- Widow of naturalized alien. 1821, 110, § 4. SECT. 5. Where no division can be conveniently made by metes and bounds, dower shall be assigned in a special manner, as of a third part of the rents and profits, to be computed and ascertained in manner as aforesaid. SECT. 6. Such widow, where her husband died seized, shall be entitled to receive one undivided net third part of the rents and profits, of such estate, until the heir or heirs shall assign her dower, or the same shall be assigned by the judge of probate, or judgment of court. SECT. 7. The widow of a citizen of the United States, who was an alien at the time of her intermarriage with such citizen, shall be entitled to dower in her husband's estate as other widows; except, as to land conveyed by him, or taken from him by execution, before the twenty third day of February, eighteen hundred and thirteen. SECT. 8. When the heir or other tenant of the freehold shall not, within one month after demand, assign to the widow of the 1821, 40, 61, 2. deceased her dower in his estate, she may sue for and recover the same at common law, by writ of dower; and she may also recover her reasonable damages, in the manner prescribed in the one hundred forty fourth chapter. Proceedings to recover dower by suit. 12 Mass. 485. 1 Pick. 189. 22 Pick. 283. How dower may be barred. 7 Mass. 14. 13 Mass. 223. 3 Greenl. 63. 13 Pick. 382. 8 Pick. 532. Same subject. 7 Mass. 153. SECT. 9. A married woman may bar her right of dower, in any estate conveyed by her husband, by joining with him as a party in the deed of conveyance, and thereby releasing her claim of dower, or by a subsequent deed, executed jointly with her husband, or legally authorized guardian of her husband. SECT. 10. A woman may also be barred of her dower, in her 1828, 380, 4. husband's lands, by a jointure settled on her with her consent, before marriage; such jointure consisting of a freehold estate in lands, for the life of the wife at least, to take effect immediately on the husband's death; her assent to such jointure being expressed, if she be of full age, by becoming a party to the conveyance, by which it is settled, and if under age, by her joining with her father or guardian. Same subject. 1821, 40, § 6. Widow may in certain ca SECT. 11. Any pecuniary provision made for the benefit of an intended wife, and in lieu of dower, shall, if assented to in the manner provided in the last section, bar her right of dower in her husband's lands. SECT. 12. If any such jointure or pecuniary provision be made waive jointure, before marriage, and without the assent of the intended wife, or if made after marriage, it shall bar her dower, unless she shall, within six months after the husband's death, make her election to waive such provision, and file the same in writing in the probate court. ses. husband's will. She may waive SECT. 13. Where any such provision shall be made in the will provision in her of a husband, for the widow, she shall, within six months after pro1821, 38, § 15. bate of the will, make her election, whether to accept it, or claim 1 Greenl. 148. her dower; but shall not be entitled to both, unless it appears by the will, that the testator plainly so intended. 12 Pick. 146. 1 Metc. 57. |