by a jury in the usual manner, either with or without a view of the premises, as the court shall order; and the jury that inquire of the waste shall assess the damages. SECT. 4. A person entitled to such action of waste may instead thereof bring an action of tort in the nature of waste, in which he shall recover such damages as he has suffered by reason of the waste. SECT. 5. Such action of tort may be maintained by one who has the remainder or reversion in fee simple or fee tail, after an intervening estate for life, and also by one who has a remainder or reversion for life or years only, and each shall recover such damages as he has suffered by the waste. Action of tort R. S. 105, $4. 1852, 312. by whom 3 Pick. 203. may be pros brought against SECT. 6. An action of tort for waste, if commenced in the lifetime of the tenant, may be prosecuted against his executors or administra- ecuted or tors; and such action may be originally brought against the executors executors, &c. or administrators of the tenant, for waste committed or suffered in his R. S. 105, § 6. lifetime. SECT. 7. If a joint tenant, coparcener, or tenant in common, of undivided lands, cuts down, destroys, or carries away, any trees, timber, wood, or underwood, standing or lying on such lands, or digs up or carries away any stone, ore, or other valuable thing, found there, or commits any other strip or waste, without first giving thirty days' notice in writing under his hand to all the other persons interested therein, or to their respective agents or attorneys, of his intention to enter upon and improve the land; or if he does any of said acts during the pendency of a petition or other suit for the partition of the premises; he shall forfeit three times the amount of the damages that shall be assessed therefor, to be recovered and appropriated as provided in the following section. 1852, 312. Penalty for waste on lands R. S. 105, § 7. 22 Pick. 496. 1 Met. 260. appropriated. SECT. 8. Such damages may be recovered in an action of tort by any Damages, how one or more of the other co-tenants, without naming any one except the recovered and plaintiff, and the damages shall be appropriated, one-half to the persons 1. S. 105, § 8. who shall sue, and the other half to the same persons with all the other 1852, 312. co-tenants except the defendant, to be divided among them in propor- 6 Gray, 339. tion to their respective interests in the land. 22 Pick. 496. waste after ac SECT. 9. If, during the pendency of an action for the recovery of Penalty for lands, the tenant or person in possession, with knowledge of such pen- tion for possesdency, commits strip or waste, the demandant, if he recovers judgment, sion. may afterwards recover, in an action of tort, three times the amount of the damages that shall be assessed therefor. SECT. 10. If any person without license wilfully cuts down, carries away, girdles, or otherwise destroys, any trees, timber, wood, or underwood, on the land of another, the owner may recover, in an action of tort, three times the amount of the damages that shall be assessed therefor, unless it appears that the defendant had good reason to believe that the land on which the trespass was committed was his own, or that he was otherwise lawfully authorized to do the acts complained of, in which case he shall be liable only for single damages. R. S. 105, § 9. 1852, 312. 8 Pick. 514. Penalty for wil- lands. 11. 1852, 312. in case of invol R. S. 105, § 12. SECT. 11. When a trespass on lands has been casual and involuntary, Tender allowed the trespasser may tender sufficient amends before an action is brought; untary tresand if afterwards sued, he may in his answer disclaim all title to the pass. land, allege that the trespass was casual and involuntary, and set forth the tender, bringing the money into court. If upon the trial the allegations appear to be true, and the damages assessed do not exceed the amount so tendered, the defendant shall recover his costs. SECT. 12. If a tender was not made before the commencement of the action, the defendant may disclaim title, allege that the trespass was casual and involuntary, and bring into court sufficient amends, with the costs of suit up to that time. If the plaintiff does not accept the same in satisfaction, and if upon trial the allegations appear to be true, and Or money may be brought into court. R. S. 105, § 13. 1852, 312. Injunction to stay waste. the damages assessed do not exceed the amount so brought into court, the defendant shall recover his costs. SECT. 13. The supreme judicial court, or one of the justices thereof, R. S. 105, § 15. may either in term time or vacation, after the filing of the bill or other commencement of a suit concerning waste, issue a writ of injunction to stay waste, and issue such other writs and processes, and make such orders and decrees, according to the course of proceedings in equity, as justice and equity may require. how dis solved. SECT. 14. Every such injunction to stay waste may be dissolved, R. S. 105, § 16. either in term time or vacation, by the supreme judicial court, or any one of the justices thereof. Injunction for waste in case of land attached, or action for possession, &c. R. S. 105, § 17. 1852, 312, § 54. 1856, 278. Applicant to give bond. 1856, 278. Further proceedings in such case. SECT. 15. When a person whose real estate is attached commits waste thereon, or threatens or makes preparations so to do, or when a real action is brought to foreclose a mortgage, or for possession under the same, or for the recovery of land, and any waste on the land has been committed or threatened by the defendant, or any one claiming under him or acting by his permission, the court in which the suit is pending or any one of the justices may on the application of the plaintiff, either in term time or vacation, issue a writ of injunction to stay such waste. SECT. 16. In any case under the preceding section, the court or jus tice may require that the applicant shall before the issuing of the writ give bond with sufficient sureties to the adverse party, conditioned that the applicant shall pay all damages which may arise from the issuing of the injunction if it is dissolved. SECT. 17. The court may arrest and commit the defendant for a violation of such injunction, and issue such other process as may be R. S. 105, § 18. necessary or proper to enforce obedience thereto, in like manner as the supreme judicial court may do upon a suit in equity pending before them; and the injunction may be dissolved, either in term time or vaca tion, by the court in which the suit is pending, or by any one of the justices. Judgment for abatement of nuisance. Warrant there for. R. S. 106, §§ 1, 1852, 312. 11 Pick, 452. 2. SECTION 1. When the plaintiff prevails in an action of tort for a nuisance, the court may, in addition to the usual judgment for damages and costs, enter judgment that the nuisance be abated and removed, and may award an execution in common form for the damages and costs, and a separate warrant to the proper officer, requiring him to abate and remove the nuisance at the expense of the defendant, in like man 43 per as public and common nuisances are abated and removed. may be postponed. K. S. 106, § 3. when demandable of right. R. S. 106, § 4. 7. SECT. 2. The court may on motion of the defendant order a stay of such warrant for a time not exceeding six months, to give him opportu nity to remove the nuisance, upon his undertaking to do so within the time ordered. SECT. 3. If the plaintiff recovers judgment in a second suit for the continuance or repetition of the same nuisance, whether there was in the first suit a judgment for abatement and removal or not, he shall be 431 entitled as of right to a judgment for abatement and removal, and to a warrant to be issued as before provided. Expenses of executing warrant for abate sance. SECT. 4. The expense of abatement and removal shall be collected by the officer in the manner damages and costs are collected upon execution; except that the materials of buildings, fences, or other things, ment of nuiremoved as a nuisance, may be sold by the officer as goods are sold on R. S. 106, § 5. execution for the payment of debts. The officer shall apply the proceeds of the sale to defray the expenses of the removal, and pay over any balance to the defendant upon demand. If the proceeds are not sufficient to defray the expenses, he shall collect the residue. sance. SECT. 5. After the commencement of a suit in equity concerning a Injunction to nuisance, the supreme judicial court or any one of the justices, either in prevent nuiterm time or vacation, may issue an injunction to stay or prevent any R. S. 106, §§ 6, 7. nuisance on the premises in question. 1852, SECT. 6. When an action of tort for a nuisance is pending, either in Same subject. the superior court or the supreme judicial court, an injunction may be R5, 106, $8. issued and enforced by the same court or one of the justices, in the 1859, 196. manner provided in the preceding section. dissolved. SECT. 7. Every injunction issued as provided in the two preceding Injunction, how sections may be dissolved, either in term time or vacation, by the court R. S. 106, § 9. by which it was issued or one of the justices. CHAPTER 140. OF THE FORECLOSURE AND REDEMPTION OF MORTGAGES. POSSESSION AND FORECLOSURE. SECTION 1. Foreclosure by action or entry. 2. Certificate of entry to be recorded. 3, 4. Form of action and judgment. 5, 6. Form of conditional judgment. 7. Assignee of mortgagee may enter or sue. 8. Proceedings in such case. 9. Mortgagee may enter before breach, and hold subject to account. 10, 11. Mortgage, how foreclosed in such case. 12. Certificate of notice or new entry to be recorded. REDEMPTION. 13. Mortgage, may be redeemed. 14. Party redeeming to pay, or tender debt, &c. 15. Account to be taken of rents, &c. 16. Tender, when to be made. Suit for redemption. 17. Suit to be brought within one year. 18. Plaintiff to pay into court sum tendered, &c. 19. Suit may be brought without previous tender. 20. In suits in equity, court may at any time order sum not in dispute to be paid. 21. Costs upon redemption. 22. Proceedings when tender is insufficient. 23. In what court suit to be brought. 24. Commencement of suit. 25. Decree for redemption. 26. Court to award balance due with interest at twelve per cent. 27. Plaintiff may have execution thereon. 28. Judgment, &c., for balance due from mortgagee. MORTGAGES BY DEFEASANCE. 37. Conveyance with defeasance constitutes a MORTGAGES WITH POWER of sale. 38. When power of sale in mortgage deed, de- 39. Sale by mortgagor not to impair rights of 40. Party selling to report to court. Sale con firmed. Persons interested may intervene. 43. Affidavit or copy of record, evidence of due 44. When sale under power shall bar dower. 45. Mortgages to the commonwealth. 46. Proceedings for foreclosure. 29. If money tendered, &c., exceeds sum due, 48. Suit in equity may be brought; service, Foreclosure by R. S. 107, § 1. 7 Greenl. 31. 5 Pick. 268. POSSESSION AND FORECLOSURE. SECTION 1. After the breach of condition of a mortgage of real action or entry estate, the mortgagee may recover possession of the mortgaged premises by action in the manner hereinafter provided; or he may make an open and peaceable entry thereon, if not opposed by the mortgagor or 11 Met. 384, 506. other person claiming the premises; and such possession, obtained in either mode, continued peaceably for three years, shall forever foreclose the right of redemption. 10 Met. 172. 2 Cush. 374. 6 Cush. 91. 10 Cush. 166. Gray, 473. Gray, 515. Certificate of entry to be recorded. R. S. 107, § 2. 17 Mass. 429. 10 Met. 344. 10 Cush. 163. 5 Gray, 318. 7 Gray, 203. Form of action R. S. 107, § 3. 1852, 312, § 2. 2 Mass. 496. 6 Gray, 128. SECT. 2. When an entry for breach of the condition is made without a judgment, a memorandum or certificate thereof shall be made on the mortgage deed and signed by the mortgagor or the person claiming under him, or a certificate of two competent witnesses to prove the entry shall be made and sworn to before a justice of the peace; and the same shall within thirty days after the entry be recorded in the reg istry of deeds for the county or district where the land lies, with a note of reference from each record to the other, if the mortgage is recorded in the same registry. No such entry shall be effectual for the purposes mentioned in the preceding section, unless a certificate or a deposition in proof thereof is thus made and recorded. SECT. 3. The mortgagee in an action for possession may declare on and judgment. his own seisin, stating that it is in mortgage; and if it appears to the court, upon default, demurrer, verdict, or otherwise, that the plaintiff is entitled to the possession of the premises for breach of the condition of the mortgage, the court shall, on motion of either party, award the conditional judgment hereinafter mentioned, except as provided in the following section. 13 Mass. 519. 15 Mass. 487. 16 Mass. 348. 3 Met. 341. 8 Met. 517. 13 Met. 300. 6 Cush. 170. Same subject. R. S. 107, § 4. 10 Met. 174. Form of conditional judgment. R. S. 107, § 5. 7 Met. 581. 8 Met. 517. 6 Gray, 128, 428. 8 Gray, 154, 198. SECT. 4. Unless the defendant is the mortgagor or his assignee, or entitled to hold or claim the premises under him, he shall not redeem the premises, nor have a conditional judgment rendered, unless with the consent of the plaintiff; but the suit shall be conducted in all respects like a writ of entry; and in all cases the judgment for the plaintiff may be entered for possession as at common law, unless one or the other of the parties moves for the conditional judgment. SECT. 5. When the conditional judgment is to be entered, the court shall inquire and determine how much is due to the plaintiff on the mortgage, and shall then enter judgment, that if the defendant, within two months after the judgment, pays to the plaintiff the sum so found due on the mortgage, with interest and the costs of the suit, the mort5 Gray, 423.gage shall be void and the defendant shall hold the premises discharged 10 d7 thereof; otherwise, that the plaintiff shall have his execution for possession, and for costs of suit. 11 Met. 384. 4 Gray, 116. Same subject. R. S. 107, § 6. 11 Met. 384. Assignee of mortgagee may enter or sue. R. S. 107, § 7. 6 Gray, 428. Proceedings in such case. R. S. 107, § 8. 7 Pick. 31. 10 Met. 174. 12 Met. 154. 2 Cush. 262. 11 allen 41 SECT. 6. If the condition of the mortgage is for the doing of something other than the payment of money, or if but part of the mortgage money is due, the court shall vary the terms of the judgment as the case may require; but shall award execution as before provided, unless the defendant within two months after the judgment performs what is therein prescribed. SECT. 7. An entry for breach of the condition may be made, and an action for possession may be brought, by an assignee of the mort gagee, whether the assignment is by deed or by operation of law, and the action shall be conducted in like manner as if brought by the origi nal mortgagee. SECT. 8. The action may be brought like a writ of entry, against whoever is tenant of the freehold, and the mortgagor may in all cases be joined as a defendant, whether he then has any estate in the premises or not; but he shall not be liable for costs when he has no estate and makes no defence to the suit. enter before SECT. 9. Nothing contained in this chapter shall prevent a mort- Mortgagee may gagee or any person claiming under him from entering on the premises, breach, and or recovering possession thereof, before breach of the condition of the hold subject to mortgage, when there is no agreement to the contrary; but, in such R. S. 107, § 9. case, if the debt is afterwards paid, or the mortgage redeemed, the 3 Mass. 138. amount of the clear rents and profits from the time of the entry shall be i Gray, 512. accounted for, and deducted from the sum due on the mortgage. account. 11 Met. 458. foreclosed in 2 Mass. 496. SECT. 10. If such entry is before a breach of the condition, the three Mortgage, how years limited for the redemption shall not begin to run until after the such case. condition is broken, nor until after a notice in writing given by the R. S. 107, § 10. mortgagee or the person claiming under him, to the mortgagor or the 3 Mass. 155. person claiming under him, that the former will thenceforward hold the 12 Mass. 514. premises for the breach of the condition, or for the purpose of foreclosing the mortgage. SECT. 11. The person thus entitled to hold the premises for breach of the condition may instead of such notice in writing make a new formal entry for the breach of the condition, or may bring an action 6 therefor in the manner herein before provided; and such action, if brought against the mortgagor or any person claiming under him, may be maintained notwithstanding the premises are at that time in the possession of the plaintiff. 6 Cush. 91. Same subject. R. S. 107, § 11. 13 Mass. 313. Cush. 91. entry to be re SECT. 12. Such notice of intention and such new entry shall not be Certificate of effectual for the purposes aforesaid, unless a certificate or deposition to notice or new prove the same is made and recorded, as before provided in the case of corded. an original entry for breach of the condition. REDEMPTION. R. S. 107, § 12. Mortgage may be redeemed. 5 Gray, 181. 6 7 Gray, 279. SECT. 13. When the condition of a mortgage has been broken, the mortgagor or any person lawfully claiming or holding under him, may redeem the same unless the mortgagee, or some person lawfully holding or claiming under him, has obtained possession of the premises for the breach of the condition, and has continued that possession for three years. SECT. 14. The person entitled to redeem shall pay or tender to the mortgagee, or person lawfully claiming or holding under him, the whole sum then due and payable on the mortgage, and shall perform or tender performance of every other condition contained therein; and if there 5 Met. 95. has been a suit for recovering the premises, he shall pay or tender the 2 Gray, 475. costs if unpaid. ing to pay or R. S. 107, § 14. tender debt, &c. 7 Cush. 220. &c. 2 Pick. 505. 9 4 10 Pick. 398. 7 Cush. 220. 5 Gray, 423. SECT. 15. If the mortgagee or any person under him has had pos- Account to be session of the premises, he shall account for the rents and profits, and taken of rents, shall be allowed for all sums expended in reasonable repairs and im- R. S. 107, § 15. provements, all sums paid for lawful taxes and assessments, and all Pick. 259, 270. other necessary expenses in the care and management of the premises. Pick. 171. If on such account there is a balance due from him, it shall be con- Met. 498. sidered as so much paid towards the debt due on the mortgage. If 2 Cush. 405. there is a balance due him, it shall be added to the debt, and be paid or tendered as such. SECT. 16. The tender may be made at any time within the three Tender, when years limited for redemption, before as well as after an entry for breach to be made. of the condition; and if the mortgagee, or person claiming or holding demption. under him, does not accept the same and discharge the mortgage the manner prescribed by law, the mortgagor, or person claiming or holding under him, may recover the premises by a suit in equity for redemption. in SECT. 17. The tender, if not accepted, shall not prevent the foreclosure of the right of redemption, unless a suit is commenced within one year after the tender is made. SECT. 18. If in such suit the plaintiff alleges that he has tendered 6 Gray, 556. Suit for re R. S. 107, § 16. Suit to be brought within one year. Plaintiff to pay |