into court sum tendered, &c. 1857, 105, § 2. Suit may be out previous tender. or offered to pay the sum due on the mortgage, he shall when he commences his suit pay the sum thus alleged to the clerk of the court for the use of the party entitled thereto. SECT. 19. The person entitled to redeem may at any time within brought with the three years limited for the redemption, and either before or after an entry for breach of the condition, bring a suit for redemption without a previous tender, and may therein offer to pay such sum as shall be found due from him, or to perform such other condition as the case requires. R. S. 107, § 18. 7 Gray, 279. In suits in equity, court may at SECT. 20. The court in which a suit to redeem is pending, or any any time order justice thereof, may at any time after the commencement of the suit, sum not in dis- in term time or vacation, ascertain and determine by reference to a pute to be paid master or otherwise, whether any and what sum not in dispute is due on the mortgage; and by an interlocutory order direct the same to be paid to the mortgagee, or for his use to the clerk of the court. 1857, 105, § 1. Costs upon redemption. R. S. 107, § 19. Proceedings when tender is R. S. 107, § 20. insufficient. In what court R. S. 107, § 21. 1859, 196. Commencement of suit. 1853, 316. 7 Met. 157. SECT. 21. If suit is brought without a previous tender, and it appears that any thing is due on the mortgage, the plaintiff shall pay the costs of suit, unless it appears that the defendant has unreasonably refused or neglected, when requested, to render a just and true account of the money due on the mortgage, and of the rents and profits, and sums paid for taxes, repairs, improvements, and other necessary expenses; or that he has otherwise by his default prevented the plaintiff from performing or tendering performance of the condition before the commencement of the suit. In all other cases of a suit for redemption, the in their discretion award costs to either party as equity may court may require. SECT. 22. When such suit is founded on a previous tender, and it appears that the tender was insufficient, the plaintiff shall nevertheless be entitled to a decree for redemption, according to the provisions of sections nineteen and twenty-one, in the same manner as if no tender had been set forth in the suit: provided, that the suit is commenced within the three years limited for the redemption. SECT. 23. A suit for redemption may be brought in the superior court, or the supreme judicial court, held for the county where the land lies, and if brought in the superior court an appeal may be had to the supreme judicial court as in other civil actions. SECT. 24. When a bill in equity for redemption is inserted in a writ, the service shall be deemed the commencement of the suit, if the writ or a copy thereof, with or without the bill, but with a description See Ch. 113, § 3. of the premises sought to be redeemed, attested by the officer, is depos ited within three days after the day on which the service is made, in the office of the clerk of the court to which the writ is returnable; otherwise the depositing of such copy or writ shall be deemed the commencement of the suit. Decree for re- R. S. 107, § 23. Court to award Plaintiff may have execution thereon. SECT. 25. If it appears that the plaintiff is entitled to redeem, the court shall inquire and determine what sum is due on the mortgage, or what other act the plaintiff is bound to perform for the redemption of the premises, and shall enter a decree, that, upon the payment of such sum, or the performance of such other thing, within such time as the court shall order, the plaintiff shall have possession of the premises, to hold discharged of the mortgage. SECT. 26. When it appears to the court that the mortgagee has not unreasonably neglected or refused to render a true account of the rents and profits of the mortgaged estate, the court may award to him the balance found due on the mortgage with interest thereon from the expiration of three years after such entry to the time of rendering judgment in the suit, at a rate not exceeding twelve per cent. a year. SECT. 27. The court may at the same time order or decree, that if the defendant neglects or refuses to accept the money or other thing required by the decree to be paid or performed, the money shall be left R. S. 107, § 24. for his use with the clerk of the court, or that such other thing shall be done as the case may require; and the plaintiff, after having performed every thing required of him by the decree of the court, may have an execution for possession of the mortgaged premises. from mort R. S. 107, § 25. SECT. 28. If, upon a suit for redemption, it appears that the de- Judgment, &c., fendant has received from the rents and profits of the estate or other- for balance due wise more than is due on the mortgage, the court shall award judgment gagee. and execution against him for such sum as is due to the plaintiff'; and 6 Mass. 204. if there are several defendants, such judgment and execution may be 9 Pick. 171. awarded against them, either jointly or severally as the case may require, for the sums received by them or either of them respectively. SECT. 29. When the money tendered and brought into court ex- If money tenceeds the sum found due on the mortgage, and when any sum is dered, &c., exawarded to the plaintiff on account of the rents and profits received by amount due to the defendant, or for costs of suit, the court may order the whole amount so due to the plaintiff to be deducted from the money brought into court, and the same shall be restored to the plaintiff, and the residue shall be paid to the defendant. ceeds sum due, R. S. 107, § 26. be deducted, &o receives more covered back. SECT. 30. If the mortgagee or person claiming or holding under If mortgagee him receives from the rents and profits of the premises, or upon a than due, extender made to him, or in any other manner, more than is due on the cess may be remortgage, and if no suit for redemption is brought against him, the R. S. 107, § 27. mortgagor or other person entitled to such excess may recover it in an 1852, 312. action of contract for money had and received to his use. SECT. 31. If, during the pendency of a suit for redemption, it New parties appears that any other person is interested therein, the court may ma may be brought cause him to be made a party thereto upon such terms as they shall R. S. 107, § 28. think proper; and may order a summons or a subpoena to be issued and served on him in such manner as they shall direct; and he shall thereupon be allowed and required to appear and answer to the suit. SECT. 32. If a person entitled to redeem a mortgaged estate dies Executors, &c., without having made a tender for that purpose, a tender may be made, may tender and and a suit for redemption commenced and prosecuted, as well by R. S. 107, § 30. the executors or administrators as by the heirs or devisees of the de ceased. may bring suit upon tender by deceased. SECT. 33. If a tender has been made by such deceased person in his lifetime, a suit for redemption founded thereon may be commenced and prosecuted by his heirs, devisees, executors, or administrators, in R. S. 107, § 31. like manner as it might have been by the party himself; and if the plaintiff in a suit dies, the suit, whether founded on a previous tender or not, may be prosecuted to final judgment by his heirs, devisees, executors, or administrators. dian. SECT. 34. When the mortgagee, or the person claiming or holding Tender may be under him, is under guardianship as an infant or otherwise, the tender made to guarmay be made to the guardian, and he may, upon satisfaction, execute a R. S. 107, § 32. release of the mortgage. 12 Mass. 16. tion for posses SECT. 35. When execution has issued on a judgment for possession where execuand has been levied, if it shall be afterwards satisfied by payment of the sion is satisfied, amount due on the mortgage and costs, the mortgagee, his executors, mortgagee, &c., to discharge. administrators, or assigns, shall at the expense of the mortgagor enter 1848, 144, $2. on the margin of the record of the execution an acknowledgment of See Ch. 133, § 55. satisfaction, or make to the mortgagor a deed of release which shall be recorded, with proper notes of reference to the execution discharged thereby. OPENING OF FORECLOSURE. be opened, in SECT. 36. If after the foreclosure of a mortgage the person entitled Foreclosure to to the debt recovers judgment for any part of it, on the ground that the case, &c. 8 Pick. 336. 8 Met. 154. R. S. 107, § 33. value of the mortgaged premises at the time of the foreclosure was less 3 Mass. 150,562. than the sum due, such recovery shall open the foreclosure; and the person entitled may redeem the premises, notwithstanding the three years limited in that behalf have expired: provided, that his suit for redemption is brought within one year after the recovery of such judgment. Conveyance with defeasance. R. S. 107, § 34. 22 Pick. 526. 5 Gray, 509. See Ch. 89, § 15. When power of sale in mort mandant may have decree of sale. MORTGAGES BY DEFEASANCE. SECT. 37. The mortgages mentioned in this chapter shall include not only those made by a common deed of mortgage, but also such as are made by a conveyance with a separate deed of defeasance. MORTGAGES WITH POWER OF SALE. SECT. 38. When a power of sale is contained in a mortgage, and a gage deed, de- conditional judgment has been entered, the demandant may, instead of a writ of possession, have a decree entered that the property be sold pursuant to such power of sale; and thereupon the demandant shall give such notices and do all such acts as are authorized and required by the power, or the court passing the decree. 1854, 377, § 1. 2 Met. 29. Sale by mortgagor not to impair rights of mortgagee. Party selling to report to court. Persons inter- SECT. 39. No sale or transfer by the mortgagor shall impair or annul any right or power of attorney given in the mortgage to the mortgagee to sell or transfer the mortgaged property, as attorney or agent of the mortgagor. SECT. 40. The party selling shall within ten days thereafter make a Sale confirmed. report thereof and of his doings, to the court, under his oath, and file the same in the clerk's office, and the same may be confirmed and allowed, or set aside and a resale ordered, as to the court seems just and lawful. Any person interested may intervene or be summoned and heard on such proceedings; and the order of the court confirming the sale shall be conclusive evidence, as against all persons, that the power of sale was duly executed. Parties inter of redemption to be sum SECT. 41. If the tenant in the action in which such decree of sale is ested in equity to be made, is not seised in fee simple in possession of the whole equity of redemption of the land demanded, no decree for a sale shall be made until all parties interested in the equity of redemption, and whose estate or interest therein would be affected by such sale, including any married woman having right or possibility of dower, have been summoned to appear and had due opportunity to be heard according to the order of moned before Mortgagee, &c., may give notice and sell in pur suance of pow er, file copy of notice and affi davit, in regis try of deeds. Affidavit or evidence of due execution of power. court. SECT. 42. Instead of such suit and decree of sale, the mortgagee, or any person having his estate therein, or authorized by such power to act in the premises, may upon a breach of the condition give such notices and do all such acts as are authorized or required by the power; and he shall, within thirty days after selling the property in pursuance of the power, file a copy of the notice, and his affidavit setting forth his acts in the premises fully and particularly, in the office of the registry of deeds in the county or district where the property is situated. The affidavit and copy of notice shall be recorded by the register, with a note of reference thereto on the margin of the record of the mortgage deed if recorded in his office. SECT. 43. If it appears by such affidavit that he has in all respects copy of record, complied with the requisitions of the power of sale, in relation to all things to be done by him before selling the property, and has sold the same in the manner required by such power, the affidavit, or a duly certified office copy of the record thereof, shall be admitted as evidence that the power of sale was duly executed. 1857, 229, § 1. When sale under power shall bar dower. SECT. 44. If the mortgage was executed by a man having at that time no lawful wife, or if being married the wife of the mortgagor joined in the deed in token of her release of dower, the sale of the property in either of the modes aforesaid shall be effectual to bar all claim and possibility of dower in the property. MORTGAGES TO THE COMMONWEALTH. 1854, 377, § 1. 1857, 229, § 2. the common R. S. 107, § 35. Proceedings for foreclosure. SECT. 45. When a mortgage is made or assigned to the common- Mortgages to wealth, the treasurer may demand and receive the money due, and upon weth payment shall make and acknowledge a discharge of the mortgage. SECT. 46. If the condition of such mortgage is not duly performed, the treasurer may cause an entry for the breach of the condition to be made by himself, or by any person whom he appoints for the purpose, in the name and behalf of the commonwealth, or he may bring an action in the name of the commonwealth to recover possession of the mortgaged premises; and such possession, obtained either by entry or by action, shall have the same effect in foreclosing the right of redemption as a similar possession by any other mortgagee. tion. SECT. 47. The mortgagor or his assigns may redeem such premises for redempin like manner and upon the same terms as if they were held by any R. S. 107, § 37. other mortgagee; and the payment or performance of the condition for that purpose shall be made or tendered to the treasurer. may be &c. SECT. 48. If the treasurer and the person applying to redeem the Suit in equity mortgage disagree as to the sum due, the person applying may bring a brought; sersuit in equity against the commonwealth for the redemption, in the vice; judgment, supreme judicial court for the county of Suffolk. The process shall be R. S. 107, §§ 38, served on the treasurer, who shall appear and answer in behalf of the 39. commonwealth; and like proceedings shall be had, and judgment rendered, as are provided in the case of other mortgages; except that the treasurer shall accept any payment due to the commonwealth, and upon the receipt thereof, or upon the performance of such other act as the court orders, shall discharge the mortgage in like manner as when the debt is paid without suit. CHAPTER 141. OF INFORMATIONS FOR INTRUSION AND THE RECOVERY OF LANDS ring and mons. Filing sum SECTION 1. When any person unlawfully enters and intrudes upon Information of or holds any lands belonging to the commonwealth, the same may be recovered upon an information filed and prosecuted by the attorneygeneral or any district-attorney, in the supreme judicial court in any county, describing the premises and setting forth the title and claim of R. S. 108, §§ 1, 2. Service and proceedings. R. S. 108, § 3. Suits, when commenced by the commonwealth thereto; and a summons shall thereupon issue to the persons therein named as intruders or trespassers, returnable in the county where the lands lie. SECT. 2. The service of the summons and all other proceedings in the suit shall be conducted in the same manner substantially as in real actions between private persons, unless where a different course is prescribed. SECT. 3. When the title of the commonwealth is founded on a fororder of legisla- feiture for the breach of a condition in any grant or conveyance made by the commonwealth, or by the province or colony of Massachusetts Bay, no suit therefor shall be commenced unless by an order of the legislature. ture. R. S. 108, § 6. when without such order. R. S. 108, § 7. 3 Pick. 224. Public notice, in what cases to be given. R. S. 108, § 8. Who may appear as defendants. R. S. 108, § 9. Costs, when several defend ants. R. S. 108, § 10. Rents and im- R. S. 108, § 11. Commonwealth seised without execution. R. S. 108, § 5. Judgment, how R. S. 108, § 12. Claimant not bring writ of SECT. 4. If the claim of the commonwealth is founded on an escheat for want of heirs of the last owner of the premises, or on any other title except that of the forfeiture mentioned in the preceding section, the attorney-general or district-attorney may commence and prosecute a suit therefor whenever he has good reason to believe that the claim of the commonwealth can be established by proof. SECT. 5. In case of any supposed escheat, when no person appears as the heir of the person last seised, and in all cases when there is reason to suppose that there is any person claiming any estate or interest in the premises whose name is unknown, or who is absent from the state, or cannot be found therein to be served with process, the court shall, in addition to any other service, order notice to be given to all persons interested to appear and answer to the information, by causing the substance thereof with the order of the court to be published three weeks successively in such newspaper as the court shall direct, the first publication to be ninety days at least before the time appointed for the appearance of the parties. SECT. 6. Any person who claims an estate or interest in the premises, though he is not named in the information nor served with process, may appear and answer thereto; but a defendant who is not named shall not recover costs against the commonwealth, unless it appears that he has some estate or interest in the premises, although the commonwealth fails to establish its claim thereto. SECT. 7. When there are several defendants, the court may award costs for or against any one of them, as the justice of the case may require, in like manner as if he were the sole defendant. SECT. 8. If the commonwealth prevails in the suit, the defendant shall be chargeable for the rents and profits, and be entitled to an allowance for all improvements, in like manner as is provided in the case of a writ of entry between private persons. SECT. 9. The commonwealth shall be deemed and taken to be actually seised and possessed of the premises as soon as judgment is rendered in its favor, without a writ of possession. SECT. 10. The judgment shall be conclusive between the commonfar conclusive. wealth and the defendants who appear and answer, and against every person named as a defendant upon whom the summons has been duly served within the state, and all persons claiming under such defendants. SECT. 11. Any person who is not concluded by a judgment for the concluded may commonwealth according to the provisions of the preceding section, may, until his claim is barred by the law for the limitation of real actions or otherwise, bring a writ of entry to recover the premises from the commonwealth or any person who may then hold under the commonwealth; may deny and disprove any facts alleged and proved in the first suit, and allege and prove any other facts in support of his claim; and if it appears that he is entitled to the premises, shall have judgment and execution therefor in common form. Writ must be SECT. 12. If the commonwealth continues seised of the premises at |