fault, &c. sessed upon de- postponed, or if there is no issue of fact tried in the cause, and judgment is to be rendered for the demandant, said sums shall be assessed by the court, unless either party moves to have them assessed by a jury, or unless the court thinks proper to have them so assessed, in which cases a jury shall be empanelled for that purpose. R. S. 101, § 25. Damage may be assessed by arR. S. 101, § 26. bitrators, &c. Allowance for improvements, R. S. 101, § 27. how limited. Improvements and damages to be set off. R. S. 101, § 28. Demandant, when to pay for improvements, &c. R. S. 101, § 29. Further provisions as to set SECT. 24. The sums due for rents and profits, or other damages, and for improvements, may in all cases be assessed by arbitrators or assessors appointed by the court with the consent of the parties. SECT. 25. The sum to be allowed for improvements shall never exceed the amount actually expended by the tenant and those under whom he claims, nor shall it exceed the amount to which the value of the premises is actually increased thereby at the time of the assessment. SECT. 26. When any sum is allowed to the tenant for improvements, it shall be set off against the sum found due from him for rents and profits and other damages; and if there is a balance due from him, the demandant shall have judgment and execution therefor, as well as for his seisin of the demanded premises. SECT. 27. If there is any sum due to the tenant for improvements after deducting the rents and profits and other damages for which he may be found chargeable, the demandant shall before taking out his execution for seisin of the premises, pay the same to the tenant, or to the clerk of the court for his use; and the demandant shall not be entitled to recover, against the tenant or person claiming under him, any rents and profits that accrue after the judgment and before he has paid the sum so due. SECT. 28. If the sum found due to the tenant for improvements exceeds the sum due from him for the rents and profits accrued within R. S. 101, § 30. the six years, he shall be chargeable with the rents and profits accrued off. Demandant's remedy against other trespass ers. R. S. 101, § 31. 6 Cush. 268. Value of prem- before that time, so far as may be necessary to balance his claim for improvements; but in such case he shall not be liable to repay any excess of the rents and profits beyond the value of the improvements. SECT. 29. Nothing contained in this chapter shall prevent the demandant from maintaining an action of trespass for mesne profits, or for damage done to the premises, against any person, except the tenant in the writ of entry, who may have had possession of the premises or may be otherwise liable to such action. SECT. 30. When the tenant in the action claims allowance for improvements as before provided, the demandant may, by a like entry on the record, require that the value of his estate in the demanded premR. S. 101, § 32. ises without the improvements be ascertained and determined. SECT. 31. The value of the premises in such case shall be estimated as it would have been at the time of the inquiry if no such buildings or improvements had been made or erected on the premises by the tenant or by any person under whom he claims; and this sum shall be ascertained and determined, either by the court or jury, or by arbitrators or assessors, in the same manner as is provided for assessing the sums due for rents and profits, and for improvements. SECT. 32. The demandant in such case, if judgment is rendered for him, may at any time during the same term by himself or his attorney enter on the record his election to relinquish his estate in the premises to the tenant, at the price or value thereof so ascertained and determined. SECT. 33. If he requires further time to make his election, the court may, on his motion, suspend the entry of the judgment and continue the cause, but without further costs for him. SECT. 34. If he relinquishes the premises as before provided, the tenant shall thenceforth hold all the estate that the demandant had therein at the commencement of the action: provided, he pays therefor the estimated price or value thereof, in the manner following. SECT. 35. The price shall be paid in three equal instalments, with stalments. interest annually; the first instalment to be paid on or before the expi- three annual inration of one year from the time when the demandant's election to re- R. S. 101, § 38. linquish the premises is entered on the record, the second, on or before the expiration of two years from the time before mentioned, and the third, on or before the expiration of three years from the same time. pay, demandant SECT. 36. The sums shall be paid to the demandant or to the clerk Upon failure to of the court for his use, and if the tenant fails to make either of the pay- entitled to his ments within the times before limited therefor, respectively, the demand- writ of seisin. ant shall be entitled forthwith to take out his writ of seisin on the judgment recovered by him, and shall take and hold the premises without allowance for any improvements made thereon. R. S. 101, § 39. SECT. 37. The expiration of a year after the judgment shall not pre- Execution may vent the issuing of the execution or writ of seisin in the case mentioned be issued after in the preceding section, but it may be taken out at any time within &c. R. S. 101, § 40. three months after such default of payment on the part of the tenant. the year when, subsequent SECT. 38. If the tenant or his heirs or assigns after the premises are Remedy for tenso relinquished to him are evicted thereof by force of any better title ant in case of a than that of the original demandant, the person so evicted may recover eviction. from his demandant or his executors, administrators, heirs, or devisees, R. S. 101, § 41. as the case may be, the amount so paid for the premises, as so much money had and received by such demandant in his lifetime for the use of the plaintiff, with lawful interest from the time of such payment. SECT. 39. If the tenant or person holding under him, when impleaded in such second action for the recovery of the premises, gives notice thereof to the person so liable to refund the purchase money, and permits him to defend the action, the judgment, if rendered against the tenant in the action, shall be conclusive as to his right to recover the amount so paid for the premises. if he has givBic, &C. R. S. 101, § 42. if notice not given. SECT. 40. If the person impleaded does not give such notice to the other party and permit him to defend the suit, the latter shall be per- S. 101, § 43. mitted in the suit afterwards brought against him for the price paid for the premises, to deny the title upon which the second recovery was had; and the party so evicted shall not recover said price unless he proves that he was evicted by force of a better title than that of the original demandant. SECT. 41. If, after judgment is rendered for the demandant in a writ On the death or of entry, either party dies before the writ of seisin is executed, or before either party after judgment, the case is otherwise settled according to the foregoing provisions, any money may be paid, &c. money payable by the tenant may be paid by him or his executors or RS. 101, § 44. administrators, or by any person entitled to the estate under him, to the demandant or his executors or administrators, in like manner and with the like effect as if both parties were living; and any money payable by the demandant may be paid by him, his executors, administrators, or any person entitled to the estate under him, to the tenant or his executors or administrators, in like manner and with the like effect as if both parties were living. to issue in such R. S. 101, § 45. case. SECT. 42. When the writ of seisin is issued in such case, it shall be writ of seisin, in the name of the original demandant against the original tenant, al- in whose name though either or both of them are dead; and when executed, it shall inure to the benefit of the demandant or whoever is entitled to the premises under him, in like manner as if it had been executed on the day when the judgment was rendered. SECT. 43. If the demandant in a writ of entry claims an estate for life only in the premises, and if he pays any sum allowed to the tenant for improvements, he or his executors or administrators at the determination of his estate shall be entitled to receive of the remainder-man or reversioner the value of the improvements, as they then exist; and shall have a lien on the premises in like manner as if they had been mortgaged for the payment, and may keep possession until the sum is paid. Upon a recovery by tenant for life, reversioner, &c., to be liable. R. S. 101, § 46. Amount, how ascertained. R. S. 101, § 47. Same subject. SECT. 44. If the amount so due from the remainder-man or reversioner is not agreed on by the parties, it may be ascertained and determined as is provided for the redemption of a mortgage upon a suit in equity, to be brought by the remainder-man or reversioner as mortgagor; and the like proceedings shall be had as are prescribed in that case for ascertaining the sum due for redemption of the premises, and for the recovery thereof by the remainder-man or reversioner. SECT. 45. The remainder-man or reversioner, or those claiming under R. S. 101, § 48. him, shall not in such case be limited to the three years prescribed for the redemption of a mortgage; but they shall not in any case be entitled to recover from the adverse party any balance in money, although the rents and profits of the premises which accrued after the determination of the estate for life exceed the amount due for the improvements. SECT. 46. Such remainder-man or reversioner and those claiming R. S. 101, § 49. under him shall be considered as disseised at the time of the determination of the life estate, so far as to bar their suit in equity, and all other remedy by action or by entry, for the recovery of the premises after the expiration of the time prescribed for the limitation of the right of entry and of action in cases of disseisin. Limitation. SECT. 47. Nothing contained in this chapter concerning the rents and profits to be recovered in a writ of entry, or the allowance for improvements made on the demanded premises, or concerning the estimated value of the premises without the improvements, shall extend or apply to an action brought by a mortgagee, his heirs or assigns, against a mortgagor or his heirs or assigns, for the recovery of the mortgaged premises. SECT. 48. Writs of right and of formedon, and all writs of entry except that which is allowed in this chapter, are abolished: provided, that any person who on the thirty-first day of December in the year one thousand eight hundred and thirty-nine was entitled to maintain any of said actions, and was then within the age of twenty-one years, a married woman, insane, imprisoned, or without the limits of the United States, may bring such action at any time within five years after the disability shall cease, or after the death of the person so disabled; but no such action shall be maintained after it would have been barred by the statutes of limitation in force at and immediately before the time when the Revised Statutes took effect. SECT. 49. Any person in possession of real property claiming an estate of freehold or an unexpired term of not less than ten years, may file a petition in the supreme judicial court setting forth his estate whether of inheritance, for life, or years, describing the premises, averring that he is credibly informed and believes that the respondent makes some claim adverse to the estate of the petitioner, and praying that he may be summoned to show cause why he should not bring an action to try the alleged title. Thereupon the court shall order notice to be given to the respondent, and upon return of the order of notice, duly executed, if the respondent so summoned makes default, or, having appeared, disobeys the lawful order of the court to bring an action and try the title, the court shall enter a decree, that he be forever debarred and estopped from having or claiming any right or title adverse to the petitioner, to the premises described. If the petitioner prefers, such a petition may be inserted like a declaration in a writ, and served by copy like a writ of original summons. SECT. 50. If the respondent appears and disclaims all right and title adverse to the petitioner, he shall recover his costs. If he claims title, he shall by answer show cause why he should not be required to bring an action and try such title; and the court shall make such decree respecting the bringing and prosecuting of such action as may seem equitable and just. R. S. 60, § 5. covered. SECTION 1. When a woman is entitled to dower and it is not set Dower, how re out to her by the heir or other tenant of the freehold to her satisfaction according to the true intendment of law, nor assigned to her by the probate court, she may recover the same by a writ of dower in the inanner hereinafter provided. 1 Pick. 189, 317. must be pre manded. 6 Gray, 314. See Ch. 90, § 6. SECT. 2. She shall demand her dower of the person seised of the freehold at the time of making the demand, and shall not commence viously deher action therefor before the expiration of one month, nor after the R. S. 102, § 2. expiration of one year, from such demand; but this shall not preclude 12 Met. 557. her from making a new demand and commencing an action thereon. SECT. 3. A demand of dower in writing, signed by the widow or by her agent or attorney, containing a general description of the premises 1855, 438, § 1. in which the dower is claimed, and given to the tenant of the freehold or left at his last and usual place of abode, shall be a sufficient demand of dower. what a sufficient demand. R. S. 102, § 3. SECT. 4. If the demandant recovers judgment for her dower, she Damages. shall in the same suit recover damages for its detention. SECT. 5. The action shall be brought against the tenant of the freehold at the time when it is commenced; but if the demand was not made on him, he shall be liable for damages only for the time during which he held the premises. Action against hold. Damages. 12 Mass. 485. tenant, in case, SECT. 6. In such case if the demandant recovers her dower and Damages damages in the writ of dower, she may afterwards maintain an action against prior of tort against the prior tenant of the freehold of whom her demand was &c. made, for the rents and profits for the time during which he held the RS. 102, § 5. premises after the demand. SECT. 7. If the demandant recovers her dower, a writ of seisin shall be issued, requiring the officer to cause it to be set out by three disinterested persons appointed by the court; and they shall be sworn before a justice of the peace or the officer who serves the writ, to set out the same equally and impartially, and as conveniently as may be, according to their best skill and judgment. Said persons may also be authorized, by agreement of parties, to assess the damages for detention of dower. be as 1852, 312. Writ of seisin, R. S. 102, § 6. when enement cannot be divided. SECT. 8. When the estate consists of a mill or other tenement which cannot be divided without damage to the whole, the dower may signed of the rents, issues, or profits, to be had and received by the R. S. 102, §7. demandant as tenant in common with the other owners. 5 N. H. R. 134. vorce. SECT. 9. A woman divorced from her husband for the cause of Dower in ceradultery committed by him, or on account of his being sentenced to tain cases of diconfinement to hard labor, may recover her dower in the manner pro- R. S. 102, § 8. vided in this chapter against whoever is the tenant of the freehold. SECT. 10. The provisions contained in chapter ninety as to the lands General provis out of which dower may be claimed, the manner in which it may be ions. R. S. 102, § 9. barred, and the liability of the tenant for waste, shall be applied and enforced when dower is demanded or recovered by force of this chapter. SECTION CHAPTER 136. OF THE PARTITION OF LANDS. IN COURTS OF COMMON LAW. 1. Partition, how made. 2. upon petition by one or more. 3. 4. by one who has an estate in possession. by a tenant for years, in what cases. 5. Duration of the partition. 6. Substance of the petition for partition. 7. Petition to be indorsed. 8. Filing and notice thereof. 9. Notice, how to be served. 10. to persons absent or unknown. 12. Defects in service, how supplied. 17. Replication by petitioner, &c. 19. Costs of trial of an issue. 21. Commissioners to make partition. SECTION 46. Defendant, &c., entitled to betterments, &c. 47. Petitioner to pay for betterments before judgment. IN THE PROBATE COURT. 48. Partition by probate court. 52. Agents to act for absent heirs, &c. 54. Partition to be made of the whole, &c. 57. Preference of males, &c. 58. Whole or part set off to one party, and money paid. 59. Costs to be paid by all parties. 60. No partition in probate court when shares 61. Estate of deceased to be severed. ADVANCEMENTS. 66. Questions of advancement, how determined. GENERAL PROVISIONS. 67. Leases not to prevent or invalidate partitions. 68. Party being guardian, &c., of co-tenant, not to prevent, &c. 69. Case of remainders, &c., to persons not in being at time of application for partition. 70. Jurisdiction of the courts. 71. Money awarded to be paid before partition established. 72. Improvements after partition, compensation for. 73. party holding under partition entitled to. 74. Return may be set aside. 75. Returns of partitions, &c., to remain in office of clerk, &c. 76. Registries heretofore made, to be valid. DIVISION OF WATER RIGHTS. 77. Division of water rights. 45. When petitioner may recover costs. Partition, how made. R. S. 103, § 1. 7 Mass. 475. 14 Mass. 434. 5 Met. 1. 10 Met. 419. upon petition by one or more. R. S. 103, § 2. 1842, 14, § 1. 1859, 196. 7 Mass. 503. 13 Met. 465. IN COURTS OF COMMON LAW. SECTION 1. Persons holding lands as joint tenants, coparceners, or tenants in common, may be compelled to divide the same, either by writ of partition at the common law or in the manner provided in this chapter. 13 Met. 462, 465. 6 Cush. 472. 12 Cush. 170. 3 Gray, 111. SECT. 2. One or more of the persons so holding lands may apply by petition to the superior court, or supreme judicial court, held within or for the county in which the lands lie, for a partition of the same; and said courts may cause partition to be made, and the share or shares of the petitioners to be set off and assigned; and the residue of the |