he shall account for what he receives on the second sale, and for any 7 Mass. 392. damages recovered of the first bidder for a loss on the resale, as for so much received on the execution. SECT. 39. The officer making such sale shall in his return of the execution particularly describe the goods sold, and the sum for which each article was sold; and if he is guilty of fraud in the sale or return, he shall be liable in an action of tort, at the suit of the party injured, for five times the amount of the actual damage sustained by reason of such fraud. Return of execution. Liability for fraud. R. S. 40, § 13. 1852, 312. R. S. 97, § 28. posed of. SECT. 40. The money arising from the sale shall be applied to pay- Proceeds of ing the charges and satisfying the execution, and the officer shall return sale, how disthe residue, if any, to the debtor on demand, or shall apply and pay over the same as provided in the following sections. SECT. 41. If the goods sold on execution have been attached by another creditor, or seized on another execution, either by the same or any other officer, or if before the payment of such residue to the debtor another writ of attachment or execution against him is delivered to the officer who made the sale, the proceeds of the sale shall be applied to the discharge of the several judgments in the order in which the respective writs of attachment or execution were served, and the residue, if any, shall be returned to the debtor. R. S. 97, § 29. when liable to two or more creditors. R. S. 97, § 30. R. S. 97, § 31. SECT. 42. If an attachment or seizure on execution is made of a when there share in any incorporated company, or of any other property which may have been sucbe attached without taking and keeping the exclusive possession thereof, ments. and if the same property is subsequently attached or taken in execu- 9 Mass. 265. tion by another officer, he shall give notice thereof to the officer who makes the sale under the first attachment or seizure; and if the latter without such notice pays to the debtor the balance of the proceeds of the sale, he shall not be liable therefor to the person claiming under such subsequent attachment or seizure. LEVY, &C., ON SHARES IN CORPORATIONS. porated compa SECT. 43. The share or interest of a stockholder in any corporation Shares in incor. established under the authority of this state, may be taken on execution and sold as hereinafter provided. SECT. 44. If the property has not been attached in the same suit, the officer shall leave an attested copy of the execution with the clerk, treasurer, or cashier, of the company, if there is any such officer, other wise with any officer or person having the custody of the books and papers of the corporation; and the property shall be considered as seized on execution when the copy is so left, and shall be sold in like manner as goods and chattels. SECT. 45. If the share is already attached in the same suit, the officer shall proceed in seizing and selling it on the execution, in the same manner as in selling goods and chattels. nies. Proceedings. R. S. 97, § 37. Same subject. known the debtor. SECT. 46. The officer of the company who is appointed to keep a Officer of comrecord or account of the shares or interest of the stockholders therein, pany to make shall, upon the exhibiting to him of the execution, be bound to give a shares held by certificate of the number of shares or amount of the interest held by R. 3.97, § 39. the judgment debtor, in like manner and upon the like penalty as is See Ch. 123, § 61. prescribed in chapter one hundred and twenty-three upon the exhibiting to him of a writ of attachment. purchaser. SECT. 47. An attested copy of the execution and of the return to give new thereon shall within fourteen days after the sale be left with the officer certificates to of the company whose duty it is to record transfers of shares; and the R. S. 97, § 40. purchaser shall thereupon be entitled to a certificate or certificates of the shares bought by him, upon paying the fees therefor and for recording the transfer. Purchaser enti tled to divi SECT. 48. If the shares or interest of the judgment debtor had dends after at been attached in the suit in which the execution issued, the purchaser shall be entitled to all the dividends which have accrued after the attachment. tachment. R. S. 97, § 41. Terms for years, when to real or personal be levied on as estate. R. S. 97, § 33. 1847, 267, § 4. LEVY, &C., ON TERMS FOR YEARS. SECT. 49. Terms for years, when the original lease was for one hundred years or more, and so long as fifty years or more thereof remain unexpired, shall be regarded as real estate so far as concerns the levying of an execution thereon. Other terms for years shall be seized and sold on execution in like manner as personal chattels, except that See Ch. 90, § 20 the officer before selling the same shall give fourteen days' notice of the time and place of sale, by leaving notice thereof in writing with the debtor personally or at his last and usual place of abode, and by posting notice on the demised premises. Execution sus pended by prior attachment. R. S. 97, § 34. 8 Met. 245, 251. 5 90. Same subject. Case of death, &c., of officer after beginning to SUSPENSION OF LEVY. SECT. 50. When any estate, either real or personal, is seized on execution, and the further service of the execution is suspended by reason of any prior attachment on the same estate, the estate shall remain bound by such seizure until it is set off or sold, in whole or in part, under the prior attachment, or until that attachment is dissolved. SECT. 51. If the estate is set off or sold in part under the prior attachment, or if that attachment is dissolved, the estate, or such part thereof as remains undisposed of, shall continue bound for thirty days thereafter, by the seizure on the execution; and the service of the execution may be completed in like manner as if the estate had been first seized thereon at any time within said thirty days, although the return day of the execution has passed. DEATH, &C., OF OFFICER OR PARTY AFTER COMMENCEMENT OF LEVY. SECT. 52. When an officer has begun to serve an execution and dies, or is incapable of completing the service and return thereof, the serve an execu- same may be completed by any other officer who might by law have served the execution if originally delivered to him. If the first officer has not made a certificate of his doings, the second officer shall certify whatever he finds to have been done by the first, and shall add thereto a certificate of his own doings in completing the service. tion. R. S. 97, § 13. 2 Pick. 276. of removal, Refer 6 Mass. 20. of death of either party. R. S. 97, § 15. 9 Mass. 209. 3 Met. 253. Execution on writ of entry to SECT. 53. When an officer has begun to serve an execution, he may complete the service and return thereof although he is removed from office, or the service cannot be completed until after the return day. SECT. 54. If either party dies after any real estate, goods, or chattels, have been seized on execution, the service thereof may be completed in like manner and with the same effect as if both parties were still living, and the officer, when necessary, may appoint an appraiser for the deceased party. RECORDING OF CERTAIN EXECUTIONS. SECT. 55. When an execution issuing upon a judgment in a writ of be recorded in entry for the possession of real estate is served by an officer, he shall, within three months after the service and before the return thereof into the clerk's office, cause the execution with his doings thereon to be recorded in the registry of deeds for the county or district in which the estate is situated, the expense of which shall be added to the charge for service. registry of PENALTY ON OFFICER FOR NOT PAYING MONEY COLLECTED. collected. SECT. 56. If any officer unreasonably neglects to pay any money Penalty for decollected by him on execution, when demanded by the creditor therein, tailing money he shall forfeit and pay to the creditor five times the lawful interest of R. S. 97, § 73. the money from the time of the demand until it is paid. 7 Mass. 464. 4 Met. 149. TITLE III. OF REMEDIES RELATING TO REAL PROPERTY. CHAPTER 134.- Of the Writ of Entry, and Petitions for the Settlement of Title. CHAPTER 136.- Of the Partition of Lands. CHAPTER 137.— Of Forcible Entry and Detainer. CHAPTER 138.-Of Waste and Trespass on Real Estate. CHAPTER 139.— Of Actions for Private Nuisances. CHAPTER 140.-Of the Foreclosure and Redemption of Mortgages. CHAPTER 141.-Of Informations for Intrusion and the Recovery of Lands by the` CHAPTER 134. OF THE WRIT OF ENTRY, AND PETITIONS FOR THE SETTLEMENT OF SECTION 37. Execution may be issued after the year, SECTION 43. Upon a recovery by tenant for life, rever- 38. Remedy for tenant in case of a subsequent 44, 45. Amount, how ascertained. 46. Limitation. 47. This chapter not to apply to a mortgagee. 48. Certain real actions abolished. Saving for minors and others. 49. Party in possession claiming freehold, &c., may petition S. J. C. to compel claimant to try title. 50. Proceedings on such petition. Action to recov SECTION 1. All estates of freehold, whether in fee simple, fee tail, or er the freehold. for life, may be recovered by a writ of entry upon disseisin, unless a different action is prescribed by law. R. S. 101, § 1. 6 Cush. 265. Declaration therein. SECT. 2. The demandant shall declare on his own seisin within twenty years then last past, without specifying any particular day, and shall allege a disseisin by the tenant, but need not aver a taking of See Ch. 129, § 3. the profits; and he shall then set forth the estate that he claims in the R. S. 101, §§ 2, 3. 3 Met. 341. 1 Cush. 468. Proof of the R. S. 101, § 4. premises, whether it is in fee simple, fee tail, or for life, and if the latter whether it is for his own life or for the life of another, but he shall not be required to set forth the original gift, devise, or other conveyance or title, by which he claims the estate. SECT. 3. The demandant shall not be required to prove an actual seisin alleged. entry under his title, but if he proves that he is entitled to such an estate as he claims in the premises, whether as heir, devisee, purchaser, or otherwise, and also that he has a right of entry therein, this shall be deemed sufficient proof of his seisin as alleged in the declaration. No such action shall be maintained unless the demandant has at the time of commencing the same a right of entry into the premises. Descent, &c., SECT. 4. No descent or discontinuance shall take away or defeat any not to bar right right of entry or of action for the recovery of real estate. of entry. Same subject. R. S. 101, § 7. 2 Gray, 135. Proceedings on Pleadings and Joint tenants, &c., how to sue. SECT. 5. Every person who is in possession of the premises demanded in such writ of entry, claiming any estate of freehold therein, may be considered as a disseisor for the purpose of trying the right, whatever was the manner of his original entry on the premises. SECT. 6. If the person in possession has actually ousted the demandant or withheld from him the possession of the premises, he may, at the election of the demandant, be considered as a disseisor for the purpose of trying the right, although he claims therein an estate less than a freehold. SECT. 7. Every suit upon such writ of entry shall be prosecuted and conducted in the same manner as if the demandant had at the time of commencing the action made an actual entry on the demanded premises, and had been immediately ousted by the tenant; so that on a trial upon the general issue, if the demandant proves that he is entitled to such estate in the premises as is set forth in the declaration, and that he had a right of entry on the day when the action was commenced, he shall recover the premises, unless the tenant proves a better title in himself. SECT. 8. The law and practice relating to the pleadings and evidence in the action or writ of entry on disseisin, as now recognized and estabSee Ch. 129, § 84. lished, shall continue in force, except so far as they are altered by the provisions of this chapter, and chapter one hundred and twenty-nine. SECT. 9. Any two or more persons claiming the same premises as R. S. 101, § 10. joint tenants, tenants in common, or coparceners, may join in a suit for 6 Gray, 428. the recovery thereof, or any one may sue alone for his share. SECT. 10. The demandant may recover any specific part of the premrecover part,&c. ises or any undivided portion thereof to which he proves a sufficient 2 Pick. 387. title, though such part or portion is less than is demanded in the writ. SECT. 11. Upon the death of either demandant or tenant, the action On death of el- may proceed by or against the survivors and the heirs or devisees of the Demandant may R. S. 101, § 11. 3 Pick. 52. 9 Pick. 259. ther party ac deceased party, in the manner prescribed in chapter one hundred and tion may protwenty-seven. SECT. 12. Non-tenure, disclaimer, several tenancy, and sole tenancy, may be pleaded in abatement or given in evidence under the general issue, but the party shall be allowed such costs only as accrue after the filing of the plea. 13 Mass. 439. 12 Met. 151. 7 Čush. 502. 4 Gray, 55. SECT. 13. If the demandant recovers judgment in a writ of entry, he shall be entitled to recover in the same action damages for the rents and profits of the premises, from the time when his title accrued, subject to the limitations hereinafter contained; and he shall also recover damages for any destruction or waste of the buildings or other property, for which the tenant is by law chargeable. SECT. 14. If an issue of fact is found for the demandant, the jury shall at the same time assess his damages, unless it is otherwise ordered by the court as hereinafter provided. SECT. 15. The rents and profits for which the tenant is liable shall be the clear annual value of the premises for the time during which he was in possession thereof, after deducting all lawful taxes and assessments on the premises that have been paid by him, and all the necessary and ordinary expenses of cultivating the land, or of otherwise collecting the rents, profits, or income, of the premises. 4 Cowen, 168. 6 Cush. 269. ceed, &c. Pleadings. 1836, 273, § 1. 2 14 Mass. 239. Damages may be recovered in R. S. 101, § 14. 6 Cush. 267. Gray, 57. same action. 2 Met. 295. 4 may be assessed by same jury, unless, &c. R. S. 101, § 15. estimated. 2 Met. 295. cluded. 12 Mass. 314. R. S. 101, § 18. Cush. 269. SECT. 16. In estimating the rents and profits, the value of the use by Use of improvethe tenant of any improvements, whether made by himself or those ments not inunder whom he claims, shall not be computed nor allowed to the R. S. 101, $17. demandant. SECT. 17. The tenant shall not be liable for the rents and profits for Limitation. a longer term than six years, nor for any waste or other damage com- 6 mitted before that time, unless when the rents and profits are allowed by way of set-off to his claim for improvements, as hereinafter provided. SECT. 18. If the demanded premises have been actually held and Tenants for six possessed by the tenant in the action, and by those under whom he years allowed claims, for six years next before the commencement of the action, he ments. shall, if judgment is against him, be entitled to compensation in the 12 Mass. 329. manner hereinafter provided for the value of any buildings or improve- 13 Mass. 241. ments made or erected on the premises by himself, or by any person under whom he claims. for improve 5 R. S. 101, § 19. Mass. 291. Pick. 140. 7 Met. 310. SECT. 19. The tenant shall also be entitled to the like compensation although the premises have not been so held six years, if he holds them less than six under a title which he had reason to believe good. 2 Gallis, 105. 7 Met. 310. 6 Mass. 303. 10 Cush. 451. so when for SECT. 20. When the tenant in the action claims allowance for such Proceedings for obtaining such improvements, he shall enter on the record a suggestion of his claim, allowance. with a request that the value of the improvements may be ascertained R. S. 101, § 21. and allowed to him, if judgment is rendered for the demandant. R. S. 101, § 22. SECT. 21. The suggestion shall be entered at the same term with the When suggesplea, if any, unless the court for sufficient reason allows it to be made tion entered. afterwards; and if judgment is rendered for the demandant without a plea, the suggestion shall be entered at such stage of the proceedings as the court prescribes or allows. SECT. 22. If any issue of fact is tried in the case and found for the demandant, the jury shall at the same time ascertain and determine the sum to be allowed to the tenant for such improvements, unless it appears to the court, on the motion of either party, that it would be more convenient to postpone the assessment of the sums due to the demandant for the rents and profits or other damages, or to the tenant for improvements, until after the trial of the title and a verdict thereon; in which case the court may make an order for that purpose, at any time before the verdict on the title is recorded. SECT. 23. If the assessment of the sums due to either party is so How to be as |