Guardian to

give bond, unalready bound, upon license to sell for

payment of debts.

R. S. 71, § 32.

to give fur

he sells more

county, in the same manner and upon the same terms and conditions as are prescribed in this chapter in the case of a guardian appointed in this state, except as hereinafter provided.

SECT. 34. When it appears to the probate court that a foreign guardian, licensed to sell real estate for the payment of the debts of his ward, is bound with sufficient surety or sureties, in the state or country where he was appointed, to account for the proceeds of such sale, and an authenticated copy of such bond is filed in said court, no further bond shall be required; otherwise he shall give bond in like manner as is prescribed in this chapter in case of sales by foreign executors or administrators.

SECT. 35. When such foreign guardian is licensed to sell more than ther bond when is necessary to pay debts and charges, he shall, before making the sale, than necessary. give bond with sufficient surety or sureties to the judge of the probate R. S. 71, § 33. court, conditioned to account before the same court for all proceeds of the sale remaining after payment of said debts and charges, and to dis pose of the same according to law.

to give additional bond

sell for maintenance, &c.

R. S. 72, § 17. 11 Met. 529. 11 Cush. 18.

SECT. 36. Every foreign guardian licensed to sell real estate for the upon license to maintenance of his ward or investment, shall before making the sale give bond with sufficient surety or sureties to the judge of the probate court, conditioned, in addition to the condition required in the bond of other guardians in such case, that he will account for and dispose of the proceeds or so much thereof as may remain upon the final settlement of his accounts, to such persons, and in such proportions, as the real estate would have descended or been disposed of according to the laws of this state if it had not been sold.

What courts

may license

dians.

PROVISIONS COMMON TO SALES BY GUARDIANS.

SECT. 37. The license to a guardian may be granted by the supreme sales by guar- judicial court, or the superior court in any county, or by the probate court for the county in which he is appointed. The application when not made to the probate court shall be accompanied by a certificate of that court as to the necessity or expediency of making the sale.

R. S. 71, § 30.

R. S. 72, § 6.

When over

assent.

R. S. 71, § 28.
R. S. 72, § 9.

SECT. 38. No license shall be granted to a guardian except in case seers of poor to of minors, unless the overseers of the poor of the place where the ward is an inhabitant or resides certify in writing their approbation thereof. SECT. 39. No license shall be granted to a guardian until after nosons interested. tice, by public advertisement or otherwise as the court shall order, to R. S. 71, §§ 8, 29. the next of kin of the ward and all persons interested in the estate, to appear and show cause why the same should not be granted; but such notice may be dispensed with if all persons interested signify in writing

Notice to per

R. S. 72, § 8.

7 Met. 457.

8 Met. 51, 355. 2 Gray, 160.

Proceedings by

foreign execu

their assent to the sale.

SECT. 40. All who are next of kin, and heirs apparent or presump tive, of the ward, shall be considered as interested in the estate, and may appear as such, and answer to the petition of the guardian.

ŠECT. 41. Guardians appointed in this state or elsewhere, when licensed to sell real estate, shall, before fixing on the time and place of sale, take and subscribe the oath, give notice of the time and place of sale, and otherwise proceed therein, as prescribed in like cases for exec utors and administrators; and the evidence of giving notice may perpetuated in the same manner.

be

PROVISIONS COMMON TO SALES BY EXECUTORS, ADMINISTRATORS, AND

GUARDIANS.

SECT. 42. All proceedings in probate courts respecting sales by a tors, &c., where foreign executor, administrator, or guardian, shall be had in the court R. S. 71, § 25. for the county in which an authenticated copy of his appointment is first

had.

R. S. 72, § 16.

filed.

SECT. 43. No license shall be in force for more than one year after License, how the granting thereof, except when a sale is made of land recovered by R. 9.71,16. long in force. an executor or administrator as provided in sections twelve and thir- R. S. 72, 13. teen.

2 Cush. 184.

estate.

SECT. 44. In all sales by executors, administrators, or guardians, Surplus of sales appointed in this state or elsewhere, of part or the whole of the real considered real estate of a deceased person or ward, the surplus of the proceeds remain- R. S. 71, § 34. R. S. 72, §§ 5, 17. ing on the final settlement of the accounts shall be considered as real 3 Mass. 518. estate, and be disposed of to the same persons and in the same propor- 9 Pick. 130. tions as the real estate would descend or be disposed of by the laws of this state if not sold.

may be award71, 36.

SECT. 45. If a person appears and objects to the granting of a license When costs to sell real estate, and it appears to the court that either the petition or ed the objection thereto is unreasonable, they may award costs to the pre- R. S. 72; § 18. vailing party.

executor, ad

&c.

fted to five years, unless, R. S. 71, § 37. cush.223.

R. S. 72, § 19.

SECT. 46. No action for the recovery of any estate sold by an exec- Actions for utor or administrator under this chapter shall be maintained by any heir lands sold by or other person claiming under the deceased, unless it is commenced ministrator, or within five years next after the sale; and no action for any estate so guardian, limsold by a guardian shall be maintained by the ward or by any person claiming under him, unless commenced within five years next after the termination of the guardianship; except that persons out of the state, and minors and others under legal disability to sue at the time when the right of action first accrues, may commence such action at any time within five years after the removal of the disability or their return to the state. No entry, unless by judgment of law, shall be made upon lands so sold, with a view to avoid the sale, unless within the times of limitation before prescribed for the commencement of an action.

SECT. 47. No action relating to an estate sold under this chapter, in which an heir or other person claiming under the deceased, or in which the ward or a person claiming under him, contests the validity of the sale, shall be avoided on account of the deed not having been executed and delivered within one year after the granting of the license, nor on account of any irregularity in the proceedings, provided it appears:First. That the executor, administrator, guardian, or other person, was licensed to make the sale by a court of competent jurisdiction: Second. That he gave a bond which was approved by the judge of the probate court, in case a bond was required upon granting the license:

Third. That he took the oath prescribed in this chapter:

Fourth. That he gave notice of the time and place of sale as prescribed herein and,

Fifth. That the premises were sold accordingly by public auction, and are held by one who purchased them in good faith.

Requisites of valid sale, as ward.

against heir or

R. S. 71, § 38.
R. S. 72, 20.
1840, 97.
Pick. 285.

2 Cooley, 506.

9

2 Cush. 184.

as against claimants adverse to heir or

R. S. 71, § 40.

SECT. 48. If the validity of a sale is drawn in question by a person claiming adversely to the title of the deceased or the ward, or claiming under a title that is not derived from or through the deceased or ward, ward. the sale shall not be void on account of any irregularity in the proceed- R. S. 72, § 22. ings, if it appears that the executor, administrator, or guardian, was licensed to make the sale by a court of competent jurisdiction, and that he accordingly executed and acknowledged in legal form a deed for the conveyance of the premises.

SECT. 49. Every person authorized to make sale of lands under this chapter shall be required upon application to the probate court by an heir, creditor, ward, or other person, interested in the estate, to make answer upon oath to all matters touching his exercise and fulfilment of said license, including all proceedings under it from its first grant, as fully as he is liable to account and be examined in reference to personal estate. If, in relation to the exercise of such license or a sale under it, there is

ing sales may

such sales. Li

Persons makbe examined upon oath as to ability for misconduct, &c. R. S. 71, § 39. R. S. 72, § 21. 1857, 71, § 1.

any neglect or misconduct in the proceedings of such person, by which a person interested in the estate suffers damage, he may recover compensation therefor on the probate bond or otherwise as the case may require.

CHAPTER 103.

OF TAKING LAND TO SATISFY EXECUTIONS FOR DEBT.

Lands and

LEVY AND SET-OFF.

SECTION 1. All the lands of the debtor in possession, remainder, or rights thereto reversion, all his rights of entry into lands and of redeeming mortgaged

may be taken

on execution.

R. S. 73, § 1.

1844, 107, § 1.

lands, and all lands and rights above described fraudulently conveyed by him with intent to defeat, delay, or defraud his creditors, or pur

1857, 298.

2 Gray, 538.

gallen

chased, or directly or indirectly paid for by him, the record title to 1855, 453, § 1. which is retained in the vendor, or is conveyed to a third person with 1 Met. 528. intent to defeat, delay, or defraud the creditors of the debtor or on a 3 Met. 26. trust for him, express or implied, whereby he is entitled to a present conveyance, may, except as provided in chapter one hundred and four, be taken on execution for his debts in the manner hereinafter provided. SECT. 2. Estates tail which could be lawfully barred by the person Estates tail may entitled thereto, may be taken on execution in the same manner as es- R. S. 73, § 2. tates in fee simple; and whoever lawfully holds such premises under 4 Mass. 195. the execution shall have an estate in fee simple therein.

SECT. 3. Upon the levy of an execution on the debtor's land, the officer shall cause the estate to be appraised by three disinterested and discreet men, of whom one shall be appointed by the creditor, one by the debtor whose land is taken, or, if the debtor is absent from or not resident in the state, by his agent or attorney if he has any known to the officer, and the third by the officer. If the debtor is absent from or not resident in this state, and has no agent or attorney known to the officer, or neglects to appoint an appraiser, the officer shall appoint one for him. The persons thus appointed shall be sworn before a justice of the peace or the officer, faithfully and impartially to appraise the real 2

be taken, &c.

R. S. 73, § 3.

1852, 1.

Land to be ap-
praised, &c.
1848, 317.
1852, 256.
Greenl. 14.
8 Mass. 113.
11 Mass. 468,
17 Mass. 434.
3 Met. 251.
Cush. 32.

7 Mass. 71.

515.

2 Pick. 382, 443.

10 Cush. 247.

estate shown to them as taken on the execution. SECT. 4. The appraisers shall proceed with the officer to view the Appraisers to land, and shall examine it so far as is necessary to form a just estimate view land, certify, &c. of its value; and a certificate of their appraisement shall be indorsed R. S. 73, § 4. 14 Mass. 28. on the execution and signed by them. 2 Pick. 382, 564.

tificate, &c.

9 Mass. 92.

Pick. 35.

SECT. 5. The land levied upon, whether it is an entire piece or an Land, how deundivided part thereof, and whether the debtor's estate therein is a fee scribed in cersimple or any less estate, and whether it is in possession, reversion, or R. S. 73, § 5. remainder, shall be described by metes and bounds, or otherwise, with 11 Mass. 163. as much precision as is necessary in a common conveyance of land, and in such manner that the premises may be known and identified. Such description may be contained in the certificate of the appraisers or return of the officer, and in either of them may be referred to and adopted in the other.

SECT. 6. If the execution is levied at the same time upon several pieces of land, each piece may be separately appraised, or all may be appraised together. When several pieces are taken successively on the same execution, a distinct set of appraisers may be appointed for each piece, or all may be appraised by the appraisers first appointed. SECT. 7. The dissent of one appraiser and his refusal to sign the certificate of appraisement, if he was sworn and acted with the others, shall not vitiate the levy of the execution; but in such case the certificate of the other two shall be sufficient.

ap

a

4 Met. 404.

in separate

pieces, how ap-
R. S. 73, § 6.
11 Mass. 515.

praised.

7 Mass. 71.

2 Pick. 382.

SECT. 8. In estimating the value of the estate of the debtor, the praisers shall value it as an estate in fee simple in possession, unless it is expressly stated in the description indorsed on the execution to be less estate; and in every case all the freehold estate and interest which the debtor has in the premises, shall be taken and pass by the levy, unless it is a larger estate than is mentioned in said description. SECT. 9. When land is held by a debtor in joint tenancy or in com- Execution, how mon, the part or share thereof belonging to the debtor may be taken on of joint tenant, execution and shall be thereafter held in common with the co-tenant. or tenant in If the whole share of the debtor is more than sufficient to satisfy the execution, the levy shall be made upon an undivided portion of that share, to be determined by the appraisers and to contain as much as they deem sufficient to satisfy the execution; the portion thus taken to be held in common with the debtor and the other co-tenant. SECT. 10. When the premises levied upon consist of a mill, millprivilege, or other real estate, which cannot be divided without damage ble of division.

common.

R. S. 73, § 9.
12 Mass. 348.

13 Mass. 57.

101

how levied on estates incapa

R. S. 73, § 10.

Execution, how levied on estates for life.

R. S. 73, § 11. 10 Mass. 200. 15 Mass. 439.

Proceedings, when levied on

rents and prof its of estates for

life.

R. S. 73, § 12.

Lessee to pay

after notice.

to the whole, and which is more than sufficient to satisfy the execution, the levy shall be made upon an undivided portion of the whole, to be determined by the appraisers, and to contain as much as they deem sufficient to satisfy the execution; and the portion thus taken shall be held in common with the debtor.

SECT. 11. When the execution is levied on an estate for life, the value thereof may be estimated by the appraisers, and the same may be taken and set off to the creditor at the appraised value, like other real estate; or the execution may be levied on the rents and profits of the premises, at the election of the creditor.

SECT. 12. In the latter case, the annual value of the rents and profits shall be estimated by the appraisers, and the premises shall be set off to the creditor for such length of time as is sufficient to satisfy the execution at the rate of rents and profits as estimated by the appraisers, if the life estate endures so long; computing interest on the sum due on the execution, and deducting the rents and profits as so much paid from time to time as the rents and profits fall due. If the life estate expires before the end of the term so fixed by the appraisers, the creditor may have a new action on the judgment to recover the sum then remaining due thereon.

SECT. 13. When the premises levied upon are under lease to a rent to creditor third person, and the reversion of the whole is taken on the execution, the lessee shall be bound to pay to the creditor the rent accruing from the time of the levy, except such part thereof as he has paid before notice of the levy.

R. S. 73, § 13.

When part is

portioned.

SECT. 14. When the premises are under lease as aforesaid, and the taken, rent ap- reversion of a part of them only is taken, it shall be ascertained and determined by the appraisers what portion of the whole annual rent shall be paid to the creditor in consequence of the levy; and the lessee shall be bound to pay the same accordingly.

R. S. 73, § 14. 17 Mass. 440.

Seisin to be de

livered to cred

signed to him.

R. S. 73, § 15. 14 Mass. 27.

SECT. 15. The officer who serves the execution shall deliver to the itor, or right as- creditor, or his attorney, seisin and possession of the premises so taken, so far as the nature of the estate and the title of the debtor will admit; but when the estate so taken consists of a remainder, reversion, or right of redemption, the officer shall not oust the person who is lawfully in possession of the land, but shall only assign to the creditor the right which the debtor had therein, and may make his return accord ingly.

Momentary seisin, when

debtor has right of entry only.

R. S. 73, § 16. 3 Mass. 538.

Execution and

corded in regis-
try of deeds.
R. S. 73, § 17.
1853, 269.

SECT. 16. When the execution is levied on land of which any person other than the debtor is actually seised, the officer shall deliver to the creditor or his attorney a momentary seisin and possession of the land, so far as to enable the creditor to maintain an action therefor upon his own seisin; but he shall not actually expel and keep out the tenant then in possession, against his will.

SECT. 17. The officer shall return the execution, with a certificate return to be re- of his doings indorsed thereon, into the clerk's office, or court to which the same is returnable, or, if a justice's execution, to the justice who issued the same; and shall also, within three months after the levy is completed, cause the execution and return to be recorded in the regis try of deeds for the county or district in which the land lies; the expense of which shall be added to the charge of levying the exe

11 Mass. 207.

15 Mass. 200. 5 Pick. 170.

Record of jus

cution.

SECT. 18. Such record in the registry of deeds of an execution tice's execution, issued by a justice of the peace or police court, and of the levy thereon, evidence of reg- shall be prima facie evidence of the regularity of the judgment and 1853, 269, § 2. prior proceedings in the case in which the execution issued.

&c., prima facie

ularity.

Levy not re

SECT. 19. If the levy of an execution is not recorded in the regis corded, how ef- try of deeds within three months as aforesaid, it shall be void as against a creditor who has attached the same premises, or taken them

fectual.