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appoint some discreet and disinterested person as agent of such defendant, whose duty it shall be to defend such suit ; and in case judgment shall be rendered for partition, to attend to the partition to be made, and therein take care of the interest of the person for whom he shall have been appointed agent as aforesaid : provided always, that no judgment for partition shall be rendered in any case against the defendant who shall be out of the United States at the time of the service of such writ of partition, and shall not have been absent twelve months, and shall be expected to return within six months.
Sec. 5. In any action of partition where the defendant shall be an infant, non compos mentis, or otherwise incapacitated to take care of his right and estate, and shall have no lawful guardian, it shall be the duty of the court before which such action shall be pending, to appoint some discreet and disinterested person as guardian to defend such infant, non compos mentis or otherwise incapacitated person against such suit ; and in case of judgment for partition, to attend to the partition to be made, and therein take charge of the interest of the person for whom he shall be appointed guardian.
Sec. 6. Either party may appeal from the judgment of the court of common pleas that partition shall be made; but if no such appeal shall be prayed in open court within two days next after such judgment, the same shall be final; and it shall be the duty of such court thereupon, on the motion of the plaintiff in such writ of partition, to appoint, at their discretion, one or more discreet, impartial and disinterested persons, to make partition pursuant to such judgment, who shall be sworn to the faithful discharge of their trust; and it shall be the duty of the persons so appointed, first giving reasonable notice to the respective parties, to cause a just partition of the estate to be made amongst the respective parties according to their several rights, as ascertained by the judgment of the court ordering such partition; and to make report of their proceedings with a plat of the division by them made, to the court by whom they shall have been appointed; and if no sufficient cause shall be shown for rejecting the said report, judgment shall be rendered thereon in conformity thereto; and said report, plat and judgment shall be recorded in the office of the town clerk of the town or towns in which said estate may be; the expense of which record shall be made a part of the cost in said action.
Sec. 7. If an appeal from any judgment of the court of common pleas for making partition shall be prayed as afore
said, and on hearing of the case before the supreme court, judgment shall therein be rendered for partition, it shall be the duty of said supreme court, in like manner, to appoint, at their discretion, one or more discreet, impartial and disinterested persons, to make partition pusuant to the judgment of said court, who shall cause partition to be made in like manner, and under the same regulations, as are above prescribed, in case the said judgment for partition had been rendered in the court of common pleas; and whenever any judgment of any court of common pleas for partition shall be confirmed by the supreme court, on the complaint of any party not appealing therefrom, similar proceedings shall be had in said supreme court.
Sec. 8. In all actions of partition, the court before which the same may be pending, may adjudge and determine as to them shall appear equitable and just relative to the apportionment of costs among the parties, plaintiff and defendant, by dividing the same equally or subjecting either party to the payment of the whole or any part thereof.
Sec. 9. In any action of partition, if any person who ought to be a party to such action shall be omitted in the writ, the writ or process in such action shall not be thereby abated ; but in case the same is pleaded, a summons shall issue to the person thus omitted, which shall be served in manner prescribed by law, at least twenty days before trial; who may come in and defend in the same manner as though he had been originally made a party to such action; and if the person thus summoned shall appear or shall neglect to appear, his name may be inserted in the process by the court; and judgment shall be rendered in such action in the same manner as if such person had been originally a party in the writ.
Sec. 10. In all actions of partition by several plaintiffs, setting forth each of their several rights and interests in the estate for the partition of which the action is commenced, judgment may be rendered, that each plaintiff shall have his part of said estate set off to him in severalty ; or that any two or more of the plaintiffs may have their parts set off to them in common.
Sec. 11. In all actions of partition against several defendants, each of the defendants may answer severally; or any two or more may answer jointly; and in their answers set forth the right or interest which they and each of them have in the estate for the partition of which the action is commenced; and judgment may be rendered that each de
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 gifts, 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, 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 reyears 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. 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
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 possession 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