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fendant may have his part set off to him in severalty; or that any two or more of the defendants may have their parts set off to them in common.

Sec. 12. No action of partition shall be abated by the decease of either of the parties, plaintiffs or defendants, in such action. And in case of the decease of either of the plaintiffs or defendants in such action, the court shall cause the heirs at law or devisees of such deceased party to be notified of the pendency of such suit, in the same manner as if they had been parties in the original writ in said action; and may, after such notice shall be given, render judgment in said suit in the same manner as might have been done had such heirs or devisees been original parties in said action: provided, that if such heirs or devisees voluntarily appear in court, without such notice, the court may proceed without further delay in the trial of and rendering judgment in said action.

Sec. 13. If any action of partition be commenced, in which it may be alleged by the plaintiff that some of the owners of said estate are unknown to the plaintiff, the court in which such action may be pending may order notice to be given to such unknown owners, by advertisement in some of the newspapers in this or other states, or in such other manner as to said court may seem proper; and said court may proceed in said action and render judgment therein in the same manner as if said unknown owners had been parties to or had appeared in said action.

Sec. 14. In all cases in which it may be alleged that one or more of the owners of said estate are unknown to the plaintiff, partition of the estate shall be made only among the parties who are named in the suit, according to their respective rights and interests, as ascertained and determined by the judgment of the court; and the share or shares of such unknown owner or owners shall remain undivided and in common; and in all such cases it shall be the duty of the court, before rendering judgment for partition therein, to require of the parties named in the suit, and among whom such partition is to be made, sufficient proof of the extent, nature and validity of their several titles to said estate.

Sec. 15. In actions of ejectment or other actions concerning any estate holden or claimed in coparcenary, common or joint tenancy, where the possession of such estate claimed is the object of the suit, the same may be commenced by all or any two or more of the coparceners, tenants in common, or joint tenants, or the same may be brought by each

one for his particular share of such estate ; and the same rule shall prevail in actions of trespass for mesne profits.

Sec. 16. All gift, grants, feeoffments, devises and other conveyances of any lands, tenements and hereditaments, which shall be made to two or more persons, whether they be husband and wife or otherwise, and whether for years, for life, in tail or in fee, shall be taken, deemed and adjudged to be estates in common and not in joint tenancy; unless it is or shall be therein expressly said, that the grantees, feeoffees or devisees, shall have or hold the same lands, tenements or hereditaments, as joint tenants or in joint tenancy, or to them and the survivors or survivor of them; or unless other words be therein used clearly and manifestly showing it to be the intention of the parties to such gifts, grants, feeoffments, devises or other conveyances, that such lands, tenements and hereditaments, shall vest and be holden as joint estates, and not as estates in common.

An Act concerning Mortgages of Real and Personal Estate.

SECTION

SECTION 1. In action of ejectment on mortgage, l 6. Town clerk to record mortgages of

court to ascertain the sum due-ren personal property. der conditional judgment.

7. Personal property mortgaged may be 2. Mortgaged estates redeemable.

redeemed. 3. Estates to be redeemed within three 8. Upon what terms—mortgagor may re

years after mortgagee has taken pos- plevy, &c. session-possession in presence of wit. 9. Mortgagor of real and personal estate nesses, how taken.

may prefer bill in equity to supreme 4. Estates mortgaged before the passing court for redemption. of this act, when redeemable.

10. Supreme court to hear, &c., bill for 5. Mortgage of personal property-mort foreclosure.

gagee to take property into possession

or record mortgage deed-exception. I It is enacted by the General Assembly, as follows:

SECTION 1. In every action of ejectment or trespass and ejectment for possession of any real estate mortgaged, in which the defendant by his plea shall aver a right of redemption in himself or in the person under whom he claims, which averment shall not be traversed by the plaintiff, or if traversed shall be found true, the court before which the same shall be pending shall, by themselves or by one or more judicious and disinterested men, by them appointed, ascertain, according to the rules of equity, the just sum due on such mortgage ; and shall thereupon render a conditional judgment, that if the mortgagor, his heirs, executors, administrators or assigns, shall pay unto the plaintiff in such action, or deposite in the clerk's office for him, the sum adjudged due as aforesaid, within two months from the time of entering up judgment, with interest, then the mortgage or deed of bargain and sale operating as such, shall be void and discharged, otherwise that the plaintiff shall have his writ of possession.

Sec. 2. All real estates conveyed or pledged by mortgage, or deed of bargain and sale with defeasance, shall be redeemable by the mortgagor or vendor, his heirs, executors, administrators or assigns, on paying the moneys borrowed thereon with interest, or performing the condition on which the same was conveyed or mortgaged; deducting the rents and profits the mortgagee or any under him may have received over and above the suitable repairs, insurance and improvements, made by him or them, and all other necessary expenses in the care and management of the premises.

Sec. 3. No mortgagor, his heirs, executors, administrators or assigns, shall be allowed to redeem any mortgaged real estate, but shall be forever barred and foreclosed of all equity and right of redemption therein, unless such mortgagor, his heirs, executors, administrators or assigns, shall pay to the mortgagee, his heirs, executors, administrators or assigns, the full sum, both principal and interest, due on such mortgage, within three years next after such mortgagee or other person claiming under him shall, by process of law, or by peaceable and open entry, made in the presence of two witnesses, have, taken actual possession of such mortgaged estate and continued the same during said term; and when possession shall be taken in the presence of witnesses as aforesaid, they shall give to the mortgagee or other person taking possession under him a certificate of such possession being taken; and the person delivering possession shall acknowledge the same to have been voluntarily done, before a justice of the peace in the town where such mortgaged estate lies; which said certificate and acknowledgment shall be recorded in the town clerk's office of such town.

Sec. 4. The limitation aforesaid shall not extend to any mortgage of any real estate made prior to the time the digest of one thousand seven hundred and ninety-eight took effect; and all such mortgages shall be redeemed within twelve years from the time the mortgagee, his heirs, executors, administrators or assigns, hath obtained or shall obtain possession of the mortgaged estate, in virtue of legal process ; or within twenty years after possesion shall have been obtained of any mortgaged estate by consent of parties, without legal process : provided, however, that in the latter case the supreme court shall be authorized to allow of the redemption of any mortga

ged estate after a possession of twenty years obtained without legal process, if any peculiar circumstances shall, in the opinion of the court, render such redemption equitable : and provided further, that all mortgages of real estate made since the digest of one thousand seven hundred and ninety-eight, and prior to the time when the digest of one thousand eight hundred and twenty-two took effect, shall be entitled to six years redemption, as provided for in said last mentioned digest.

Sec. 5. No mortgage of personal property hereafter made shall be valid against any other person than the parties thereto, unless possession of the mortgaged property be delivered to and retained by the mortgagee; or unless the said mortgage be recorded in the office of the clerk of the town where the mortgagor shall reside at the time of making the same: provided, that nothing herein contained shall affect any transfer of property under bottomry or respondentia bonds, or of any ship or goods at sea or abroad, if the mortgagee shall take possession thereof as soon as may be after the arrival of the same in this state.

Sec. 6. It shall be the duty of the town clerks to record mortgages of personal property in a book to be by them kept respectively for that purpose, with the time when the same are received and recorded.

Sec. 7. When the condition of any mortgage of personal property has been broken, the mortgagor, or any person lawfully claiming or holding under him, may redeem the same at any time within sixty days thereafter, unless the property shall in the mean time have been sold, in pursuance of the contract between the parties.

Sec. 8. The person entitled to redeem the property shall pay or tender to the mortgagee, or the person holding under him, the sum due on the mortgage, with all reasonable and lawful charges and expenses incurred in the care and custody of the property, or otherwise arising from the mortgage thereof; and if the property is not forthwith restored, the person entitled to redeem the same may recover it in an action of replevin; or may recover such damages as he may have sustained by the withholding thereof, in any proper action.

Sec. 9. Any person entitled in equity to redeem any mortgaged property, whether real or personal, may prefer a bill to redeem the same to the supreme court in the county in which the real estate sought to be redeemed is situated, or in which the mortgagor of personal property may reside, if in this state, and if not, then in any county in this state; which bill may be heard, tried and determined by said court according to the usages in chancery, and on the principles of equity.

Sec. 10. Any person entitled to foreclose the equity of redemption in any mortgaged estate, whether real or personal, may prefer a bill to foreclose the same to the supreme court sitting in the county in which said premises are situated, if said premises are real estate, and if personal, then in the county in which the mortgagor may reside, if in this state, and if not, then in any county in this state ; which bill may be heard and tried and determined by said court, according to the usages in chancery and the principles of equity.

An Act directing proceedings in cases of Forcible Entry and

Detainer.

SECTION

SECTION 1. A justice of the supreme court with a 3. Jury finding complaint true, complain.

justice of the court of common pleas, ant to have judgment of restitutionto inquire by a jury into every forci- ! form of writ of restitution. ble entry or detainer.

4. Jurors' fees to be paid in first instance 2. Form of warrant to summon a jury, by plaintiff.

summons to the party complained of, oath of jurors and verdict.

It is enacted by the General Assembly, as follows:

SECTION 1. Any justice of the supreme court with any justice of the court of common pleas, shall have power to inquire within the county in which such justice of the court of common pleas shall reside, by a jury, as is herein after directed, as well against those who make unlawful and forcible entry into lands or tenements and with a strong hand detain the same, as against those who having a lawful and peaceable entry into lands or tenements unlawfully and by force hold the same; and if it be found upon such inquiry that an unlawful and forcible entry hath been made, and that the same lands or tenements are holden and detained with force and a strong hand, or that the same, after a lawful entry, are holden unlawfully, and with force and a strong hand, such justices shall cause the party complaining to have restitution thereof.

Sec. 2. When complaint shall be formally made in writing and under oath to any two justices as aforesaid, of any unlawful and forcible entry into and detainer of any such lands or tenements as aforesaid, or of any unlawful and forcible detainer of the same after a peaceable entry, they shall make out their warrant under their hands and seals, directed to the

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