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11 allen 192

11allin 191

Guardian for

minor, &c.

SECT. 53. If it appears that any infant or insane person is interested R. S. 103, § 54. in the premises, and has no guardian within the state, the court shall assign him a guardian for the suit, to appear for him and defend his interests therein.

Partition to be

made of the

whole, &c.

SECT. 54. The partition when made on the application of an heir, shall be made of all the estate that descended from the ancestor, and R. S. 103, § 55. which any party interested, whether the applicant or others, requires to have included in the partition; and when made on the application of a 、、devisee, it shall be made of all the estate held by the applicant jointly or in common with others holding under the testator, which he or any other devisee requires to have included. The same rule shall apply when the application is made by any person holding under an heir or devisee,

Share assigned to each owner, R. S. 103, § 56.

unless, &c.

When money
may be award-

ed to equalize
partition.

R. S. 103, § 57.
7 Pick. 209.

Preference of
males, &c.

Whole or part
set off to one
party, and

money paid.
1838, 28.

8 Met. 365.

Costs to be

ties.

paid by all par-
R. S. 103, § 60.

No partition in
probate court

when shares are
disputable.
R. S. 103, § 61.

SECT. 55. Upon every such partition the court shall not only assign and set off to the applicant his share in the premises, but shall cause the residue to be divided among the parties interested, and the share of each one to be assigned to him, unless two or more of the parties consent to hold their shares together and undivided.

SECT. 56. When a messuage, piece of land, or other part of the premises, is of greater value than either party's share, and cannot be divided without great inconvenience to the owners, it may be set off to any one of the parties who will accept it, he paying to any one or more of the others such sums of money as the commissioners award to make the partition just and equal.

SECT. 57. In the assignment of part of the premises under the preceding section, males shall be preferred to females, and among the children of the deceased, elder shall be preferred to younger sons.

SECT. 58. When such real estate cannot be divided without damage to the owners, the whole or any part thereof may be set off to one or more of the parties among whom partition is ordered to be made, he or they paying to the other parties such sums of money as the commissioners shall award.

SECT. 59. The expenses and charges incurred shall be ascertained and allowed by the court, and paid by all the parties interested in the partition in proportion to their respective shares or interests in the premises. If any one neglects to pay his part, an execution therefor may be issued against him.

SECT. 60. No partition shall be made by the probate court when the shares or proportions of the respective parties are in dispute between them, or appear to the judge to be uncertain, depending upon the construction or effect of any devise or other conveyance, or upon other

Title of questions that he deems proper for the consideration of a jury and a

Estate of de-.

ered.

common law.

SECT. 61. When any part of the real estate of the deceased lies in ceased to be sev- common and undivided with that of another person, the probate court may cause it to be divided and set off from the part held by such cotenant, before making partition among the heirs or others claiming under the deceased.

R. S. 103, § 64.

Notice to be
given to co-ten-
ants.

SECT. 62. The court in such case shall order a notice of the intended partition to be given to the co-tenant, containing a description of the R. S. 103, § 65. premises to be divided, with a statement of the share or proportion claimed as belonging to the estate of the deceased, and of the time and place appointed for hearing the case. It shall be served on the cotenant by delivering to him an attested copy, or by leaving such copy at the place of his abode in this state, fourteen days at least before the time appointed for the hearing.

If absent, pro-
ceedings to be
stayed.

SECT. 63. If it appears in any stage of the proceedings that any per son interested in the premises, other than the heirs and devisees of the R. S. 103, § 66. deceased and those claiming under them, was absent from the state

CHAP. 136.] PARTITION OF LANDS ·

- ADVANCEMENTS, GENERAL PROVISIONS.

when the notice was served, and has not returned, the probate court shall either dismiss the application for partition, or stay all further proceedings until such absent party appears and answers thereto, or signifies in writing to the court his consent that partition be made as proposed.

705

SECT. 64. The partition when finally confirmed and established shall on whom partition is binding. be conclusive on all the heirs and devisees of the deceased, and all R. S. 103, 08.

persons claiming under them; on all other persons interested in the 11allen 26 premises who appeared and answered in the case, or assented to the proposed partition as before provided, and on every person so interested, on whom notice was served by delivering to him a copy thereof, or by leaving it at the place of his abode at a time when he was within the state.

on whom it is

not conclusive.

SECT. 65. Such partition shall not be conclusive upon any persons other than those mentioned in the preceding section. All other persons R. S. 103, § 69. may pursue their legal remedies for recovering the premises, or any part thereof, and also for obtaining partition of the same, in like manner as if the proceedings in the probate court had not been had.

ADVANCEMENTS.

determined.

63.

SECT. 66. Questions concerning advancements of either party may Questions of adbe heard and determined upon a petition for partition, or the court vancement how may suspend proceedings until that question is decided in the probate R. S. 103, §§ 62, court in which the estate of the deceased is settled; which court may 16 Mass. 200. hear and determine all such questions, saving an appeal as in other See Ch. 91, § 6. cases to the supreme judicial court. The final decree or sentence thereon shall be binding on all parties interested, whether the partition is made by the probate court or in the courts of common law.

GENERAL PROVISIONS.

validate parti

SECT. 67. Partitions may be made under this chapter notwithstand- Leases not to ing the existence of any lease of the whole or a part of the estate to be prevent or individed; and no partition heretofore made by a court of competent tions. jurisdiction, shall be rendered invalid by reason of the existence of such 6 Cush. 472. lease: provided, that such partition shall not prejudice the right of a lessee.

1853, 410, § 1.

guardian, &c.,

SECT. 68. Such partitions may be made notwithstanding any of the Party being tenants in common may be, alone or jointly with others, trustee, attor- of co-tenant, not ney, or guardian, of any other tenant; and no partitions of real estate to prevent, &c. heretofore made by a court of competent jurisdiction, shall be rendered 9 Cush. 405. invalid by reason that such trustee, attorney, or guardian, was a party.

1853, 410, §2.

ders, &c., to

1850, 249.

SECT. 69. The provisions of this chapter shall apply to cases in which Case of remainremainders or estates are devised or limited to, or in trust for, persons persons not in not in being at the time of application for partition, upon notice to the being, persons who may be parents of such persons, in the manner herein pre- 1853, 257. scribed, setting forth the origin and nature of the remainder or interest 1858, 137. so devised or limited. The court in such case shall appoint a suitable and competent person to appear and act as the next friend of such persons, in all proceedings touching the partition; the cost of whose appearance and services, including compensation of counsel, to be determined by the court, shall be paid by the persons applying for partition, and execution may be issued therefor in the name of the person appointed. The partition made in such case shall be conclusive upon all persons to whom such estate or remainder is devised or limited, in the same manner as if they had been in being and appeared and answered in the case, or assented to the partition.

SECT. 70. When proceedings for obtaining partition are lawfully Jurisdiction of

the courts.

11allen 191

11allen 191

R. S. 103, § 72.
16 Mass. 167.

Money awarded

partition estab-
lished.

commenced in either of the courts mentioned in this chapter, that court shall retain jurisdiction of the case, saving the right of appeal in all cases where an appeal is allowed by law.

SECT. 71. Where sums of money are awarded by the commissioners to be paid before to make the partition just and equal, the partition shall not be established by the court until all such sums are paid to the parties entitled thereto, or secured to their satisfaction, or that of the court before which the matter is pending.

1850, 239.

7 Pick. 208.
3 Gray, 536.
Compensation
for improve-
ments after par-

tition.

R. S. 103, §§ 37,

70.

party holding under partition entitled to.

SECT. 72. If after a first partition under this chapter any improvements have been made on any part of the premises which by the new partition is taken from the share of the party who made the improvements, he shall be entitled to compensation therefor, to be estimated and awarded by the commissioners, and paid by the party to whom such part of the premises is assigned on the new partition, and the court may issue an execution therefor in the common form.

SECT. 73. Every person holding lands under a partition made under this chapter, shall in case of an eviction be entitled to compensation for R. S. 103, § 71. improvements made thereon, in the manner prescribed in chapter one hundred and thirty-four.

Return may be

set aside.

SECT. 74. In all cases of partition the court may for any sufficient R. S. 103, §§ 30, reason set aside the return and commit the case anew to the same or to other commissioners, whereupon the same proceedings shall be had as are before directed.

59.

5 N. H. R. 329.

Returns of par-
titions, &c., to

SECT. 75. The return of the commissioners, when accepted, shall remain in office remain in the office of the clerk of the courts, or in the registry of probate, as the case may be; and a copy thereof, certified by the clerk, or register, shall be recorded in the registry of deeds for the county or district where the land lies.

of clerk, &c.
1847, 170, § 1.

Registries here-
tofore made to

be valid.
1847, 170, § 2.

Division of
water rights.

1854, 74.

4 Gray, 486.

of water of

natural stream.
1859, 128.

SECT. 76. All records in the registry of deeds of partitions heretofore made, if no other objection exists thereto, shall be deemed valid and sufficient whether recorded from the original return or from a copy thereof certified by the clerk or register of the court in which the partition was made.

DIVISION OF WATER RIGHTS.

SECT. 77. All persons who are interested as joint tenants, tenants in common, or otherwise, in any mill privilege, water right, or other incorporeal hereditament, may be compelled to divide the same, either by suit in equity, in the supreme judicial court, or in the manner herein before provided for the division of land. In the latter case, the commissioners appointed to make partition shall set forth in their return the best method of setting off to the several parties their respective shares or interests, and thereupon the court may require the parties interested to perform such acts as justice and equity may require, and may make all such orders and decrees in the premises, according to the course of proceedings in equity, as may be necessary to do justice between the parties.

SECT. 78. Under the provisions of the preceding section, partition may be made of the water of a natural stream not navigable, the banks of which are owned by different riparian proprietors.

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R. S. 104, § 1.

SECTION 1. No person shall make an entry into lands or tenements, Forcible entry except in cases where his entry is allowed by law; and in such cases he forbidden. shall not enter with force, but in a peaceable manner. 5 Cush. 214. 8 Cush. 32. 7 Met. 151. SECT. 2. When a forcible entry is made, or when a peaceable entry Person ousted, is made and the possession unlawfully held by force, or when the lessee held out, may or unlawfully of land or tenements, or a person holding under such lessee, holds pos- be restored, session without right after the determination of the lease by its own 10 Mass. 403. limitation, or by notice to quit or otherwise, the person entitled to the 3 Pick. 31. / premises may be restored to the possession in the manner hereinafter 3 Met. 350. provided.

13 Met. 273. 5 Cush. 563.
1 Cush. 487. 8 Cush. 29, 33.

121, 409.
11 Cush. 227.

1 Gray, 571.
4 Gray, 432.

See Ch. 87, § 8.
Ch. 90, § 31.

2 Met. 29.

5 Met. 343.
10 Met. 230, 298.
11 Met. 99.

12 Met. 300.

lessor, &c., re

SECT. 3. When a lease in writing is determined in the manner pro- On termination vided in section thirty of chapter ninety, the lessor and his assigns may of lease by rea be restored to the possession of the premises in like manner: provided, ment of rent, that when a suit is brought under this chapter to recover the possession stored, &c. by reason of such termination, if the tenant four days at least before Proviso. the return day of the writ pays or tenders to the landlord or his attor- 1857, 55. ney the rent due, with interest thereon and all costs of suit, the lease 6 Gray, 227. shall be in force. Nothing contained in this section or said section [thirty] [twenty-eight] shall affect any other rights or remedies on the part of the lessor provided in the lease.

1847, 267, § 2.

menced within

SECT. 4. No restitution shall be made under the provisions of this Suit to be comchapter of any lands or tenements of which the defendant, or his ances- three years. tors, or those under whom he holds the premises, have been in the quiet R. S. 104, § 3. possession for three years next before the commencement of the suit, amend. § 14. unless his estate therein is ended.

R. S. Act of

1841, 55, § 2.

2

3 Met. 350, 548.

SECT. 5. The person entitled to the possession of the premises may Form of writ. take from a justice of the peace, or police court, a writ in the form used RS. 101, §§4, 13. for an original summons in common civil actions before such justices or Met. 29. courts, in which the defendant shall be summoned to answer to the 10 Met. 223, 230, complaint of the plaintiff, for that the defendant is in possession of the lands or tenements in question, describing them, which he holds unlaw- 1 fully and against the right of the plaintiff, as it is said; and no other declaration shall be required.

SECT. 6. The writ shall be served seven days at least before the return day, and the suit shall be conducted like other civil actions before such justices or courts.

SECT. 7. If it appears by default or on trial that the plaintiff is entitled to the possession of the premises, he shall have judgment and execution for the possession and for his costs.

SECT. 8. If the plaintiff becomes nonsuit, or fails to prove his right to the possession, the defendant shall have judgment and execution for his costs.

294, 298.

13 Met. 186.

5

Cush. 487.
Cush. 563.

6 Cush. 415.

8 Cush. 32, 121,
124.

Proceedings in
the suit.
R. S. 104, § 5.
See Ch. 18, § 61.

Judgment,
when for plain.

R. S. 104, § 6.

when for deR. S. 104, § 7.

fendant.

10 Met. 291.

1261am

Upon appeal or
removal, de-
fendant to rec-
ognize, &c.

Remedy upon
7. S. 104, § 10.

the recogni

zance.

1848, 142.
1852, 312.

SECT. 9. When judgment is rendered for the plaintiff for restitution, and the defendant appeals therefrom, or when the defendant removes the case as provided in section thirteen of chapter one hundred and twenty, he shall, before such appeal or removal is allowed, recognize to the plaintiff, with sufficient surety or sureties, to enter the action, to pay all rent then due, all intervening rent, and all damages and loss which the plaintiff may sustain by reason of the withholding of the possession of the 2 Gray, 311, 314. demanded premises, and by reason of any injury done thereto during such withholding, together with all costs, until the restitution of the possession thereof to the plaintiff, in case the judgment from which the appeal is made is affirmed. Upon final judgment for the plaintiff, all sums of money then due to him may be recovered by writ of scire facias or action of contract upon the recognizance.

10 Met. 2.

Liability of de-
fendant for friv-

R. S. 104, § 11.
1852, 312.

SECT. 10. If the case is transferred at the request of the defendant olous plea, &c. upon any plea or suggestion by him that brings in question the title to the freehold, and if it appears to the court in which the action is determined, that the defendant originally entered on the premises under a lease from the plaintiff, or from any person under whom the plaintiff claims, or that he held them under any such lease, and that his said plea or suggestion was frivolous and intended for delay, the court shall cause a certificate thereof to be entered on the record, and the defendant shall thereupon be liable to pay double the yearly value of the demised premises from the time of the notice to quit the same, which may be recovered by writ of scire facias or action of contract on the recog nizance.

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6426

R. S. 104, § 12.

SECT. 11. The judgment in such action shall not be a bár to any ac tion thereafter to be brought by either party to recover the premises in question, or damages for any trespass thereon; but the sum recovered for rent according to the provisions of the two preceding sections shall be allowed and deducted in any assessment of damages in such subsequent action by the original plaintiff.

Action of waste

by reversioner.
R. S. 105, § 1.

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15. Injunction for waste in case of land attached, or action for possession, &c.

16. Applicant to give bond.

8. Damages, how recovered and appropriated. 17. Further proceedings in such case.

SECTION 1. If a tenant in dower, by the curtesy, or for life or years, may be brought commits or suffers waste on the premises, the person having the next immediate estate of inheritance may have an action of waste against such tenant, wherein he shall recover the place wasted and the amount of the damage.

5 Pick. 192.

7 Pick. 152.

8 Pick. 309.

by an heir.
R. S. 105, § 2.
Mode of trial.
R. S. 105, § 3.

SECT. 2. An heir may bring an action for waste done in the time of

his ancestor.

SECT. 3. If an issue of fact is joined in the cause, it shall be tried

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