divided amongst

ed.

absence, incapacity, or minority be prevented from accept- CHAP. 123. ing such estate or parcel thereof, any judge of the Supreme Court may order that such real estate or parcel thereof shall be sold at public auction on such notice and in such manner as such judge may direct, and the net proceeds of Net proceeds such sale snall be divisible among the parties entitled to said parties interestestate. And such judge shall have power to direct a deed Judge may direct thereof to be executed, by which the purchaser shall have deed to be exeall the title of the several heirs or parties represented in title. such proceedings or suit in partition; and the judge on such order may direct that such sale shall be made and the deed executed by the sheriff of the county where the lands lie, who shall receive the sum of five dollars for making the sale, executing the deed, and paying over the money, in lieu of all poundage.

cuted passing

CHAPTER 123.

OF THE SALE OF LANDS UNDER FORECLOSURE OF MORTGAGE.

1.

money secured

defendant

may pay into court

conveyance.

When actions of ejectment by a mortgagee or In actions for actions on bonds or notes secured by mortgage, or on any by mortgage, covenant in the mortgage, are brought in the Supreme Court, and no suit touching the same matter is pending in and have a rethe court, the person having the right of redemption, on appearing as defendant, may pay to the plaintiff or bring into court the amount due with costs; and thereupon the court by a rule may compel the plaintiff to re-convey to such defendant the land mortgaged, and deliver up all writings in his custody relating thereto.

where one

or

gagors absent, may be as in cases of absent debtors.

2. In case such mortgagor, or any one of several of Proceedings, such mortgagors, be an absent or absconding debtor, a more of mortdeclaration in ejectment or other process may be served upon the tenant, if any, in possession of the lands, and upon any of such defendants who shall not be absent or absconding, and a copy thereof shall also be left at the last place of abode of any of the defendants who may be absent or absconding; and such service if made the usual time limited by law for service of process, shall be sufficient to give jurisdiction to the court, and the plaintiff may proceed to final judgment and sale of the lands as hereinafter mentioned; but before such declaration shall be served the same affidavit shall be made and filed in the office of the prothonotary of the county where the declaration is returnable, as is necessary in ordinary cases of proceeding against absent or absconding debtors. In cases

CHAP. 123. under this section it shall not be necessary to wait two terms before going to trial, as in other cases against absent or absconding debtors.

Notice to be given to such

Chancery would

3. In case any persons beside the mortgagor are parties as in interested in the lands who would require to be made be defendants. defendants, if proceedings were had in Chancery, then, in addition to the service of process upon the defendant, or proceedings in the second section mentioned where he is an absent or absconding debtor, a notice in writing shall be served on all such persons, their attorneys or agents. specifying the proceedings that have been or are about to be taken, and requiring them to appear at the Supreme Court to protect their interests; which notice shall be served the same length of time as is required in notices of trial.

Sale of mort

gaged premises.

Re-hearing

provided where defendant is an

4. In case the defendant shall neglect to pay the amount found due to the plaintiff by the court, with costs, the court may order the lands mortgaged to be advertised by handbills in the county for at least thirty days, and thereafter to be sold at public auction by the sheriff of the county wherein the lands lie.

5. In case the defendant shall be an absent or absconding debtor he shall be entitled to a re-hearing at any time absent debtor. within three years after judgment; and the plaintiff, upon obtaining a rule for the sale of the mortgaged lands, shall give security for the re-payment of the sums levied, if judgment shall be reversed on such re-hearing.

Sheriff's deed; its effect.

6. The deed shall be executed and delivered by the sheriff to the purchaser, or his agent or nominee, and shall be taken as presumptive evidence of the requisitions of this Chapter having been complied with, and on being recorded in the books of registry for the county in which the lands lie, shall be sufficient to convey all the estate and interest of the mortgagor in the lands therein Writ of posses described; and the court may award a writ of possession upon judgment being had.

sion may issue.

Proceeds of sale, how applied.

Powers of Supreme Court to

7. The sheriff shall, out of the proceeds of the sale, pay to the plaintiff the sum due to him, and shall pay over the residue, if any, to such person as the court shall direct.

8. The Supreme Court shall have the same powers as adjust equities. Were possessed by the Court of Chancery in reference to the proceedings in such suits, and for the equitable adjustment of the rights of the different parties interested.

One judge to have power of

court.

Exception.

9. The powers hereby conferred upon the court may be exercised by a single judge thereof, except where the trial of an issue before a jury may become necessary, subject to an appeal from any order of the judge to the court at its next term in the county.

10. The court or a judge on being satisfied by affidavit CHAP. 124. setting forth that a sale had been duly made, the name and Deed, how exeplace of residence of the highest bidder, the fact of the death, ented, &c resignation or removal from office of the sheriff, who had sold the lands, and the name of his successor, or the sheriff in office at the time of the application, may order the then sheriff to execute and deliver such deed, and which said deed, when executed by said successor, or the sheriff in office at the time of making such order, shall have the same force and effect as if executed by the sheriff by whom the lands were sold.

after sale and be

In case of the death, resignation, or removal of any Death of Sheriff sheriff, after he has made a sale of lands under the pro- fore execution of visions of this Chapter, but before he has made the deed deed. or conveyance of the same to the purchaser, the deed or conveyance may be made to the purchaser by the successor of the sheriff so having died, resigned, or been removed.

Chapter.

11. This Chapter shall apply to causes in which sales Application of under foreclosure have already been made, but the deeds not executed and delivered.

ate in adjoining

12. Whenever any mortgaged land is situate in Sale of land situ adjoining counties, with the county line running through counties. the same, the sheriff of either of the said counties may proceed to sell the same under an order for the foreclosure of said mortgage and sale of said land, and under the provisions of this Chapter, and the sheriff shall deliver to the purchaser a deed of such lands, and any deed heretofore executed by the sheriff of either of said counties shall be valid and effectual.

13. On any sale of mortgaged premises under the Mortgagee may provisions of this Chapter, it is hereby declared and purchase enacted that it has been and shall be lawful for the mortgagee to purchase.

CHAPTER 124.

OF THE SALE OF LANDS UNDER EXECUTION.

when to bind

1. Any judgment recovered in the Supreme or County Judgments, Courts, any final decree of the Supreme Court, in any real estate. matter or suit requiring payment of money by either party, shall bind the real estate of the debtor from the time such judgment or decree shall be recorded in the books of registry for the county or district wherein such real estate is situate, and the release from a judgment or decree of

CHAP. 124. part of any lands or hereditaments charged therewith, shall not affect the validity of the judgment or decree as to the lands or hereditaments remaining unreleased, or as to any other property not specifically released, without prejudice nevertheless to the rights of all persons interested in the lands, hereditaments, or property remaining unreleased, and not concurring in or confirming the release, provided that no lands shall be levied upon until one year after the registry of the judgment or decree as aforesaid.

Death of defend- 2. In case of the death of a defendant before or after

ant before or

&c., appointed.

after judgment, judgment has been recorded in the books of registry, as and no executors, inentioned in the first section of this Chapter, and no executors or administrators have been appointed to administer his estate, the plaintiff or his personal representatives shall be at liberty to suggest said death, and to issue execution on said judgment in the names of the original parties, against said land, and sell the same under the provisions of this Chapter.

Interest of mort

gagor may levied on.

be

Sale under exe

cution of mort

3. The interest of any mortgagor of real estate may be seized or taken in execution, sold and conveyed in like manner as any other real estate may be seized or taken in execution, sold and conveyed.

4. The effect of such seizure or taking in execution, gaged lands to sale and conveyance of any such mortgaged lands and place purchaser tenements shall be to vest in the purchaser, his heirs and mortgagor at assigns, all the interest of the mortgagor therein at the

position

time of judg ment, &c.

time the judginent was recorded as well as at the time of such sale, and to vest in such purchaser, his heirs and assigns, the same rights as such mortgagor would have had if such sale had not taken place; and the purchaser, his heirs and assigns may pay, remove or satisfy any mortgage, charge or lien which at the time of recording the judgment existed upon the lands or tenements so sold in like manner as the mortgagor might have done; and thereupon the purchaser, his heirs and assigns shall acquire the same estate, right and title as the mortgagor would have acquired in case the payment, removal or Certificate to be satisfaction had been effected by the mortgagor; and on gagee to pur payment of the mortgage money to the mortgagee by the chaser paying off purchaser, his heirs, or assigns, the mortgagee, his heirs

given by mort

mortgage.

and assigns shall, if required, give to such purchaser, his heirs and assigns, at his or their charge, a certificate of payment or satisfaction of such mortgage, which certificate may be in the following form, that is to say:

To the Registrar of the County of

I, A. B., of

:

-, do certify that C. D., of

has become the purchaser of the interest of E. F., of

who

has satisfied all money due upon a certain mortgage made

by the said E. F. to me (or as the case may be), bearing CHAP. 124. date the one thousand eight hundred

day of

and , and registered at , in the year

day of
and

that such mortgage is therefore discharged. As witness.

on the

in Libro, Folio

my hand this

day of

hundred and

(Signed)

A. B.

Witness, E. H.

cate.

And such certificate shall be of the like effect as a Effect of certifirelease executed by the mortgagee, or his representatives or assigns, to the mortgagor, his heirs, executors, administrators or assigns.

5. Any mortgagee of lands and tenements so sold, or Mortgagee may the heirs or assigns of such mortgagee, may be the pur-sales. buy at such chaser at such sale, and shall acquire the same estate interest and rights thereby as any other purchaser.

ration held in

sold under exe

6. A judgment recorded shall bind the interest of any Interest of any party or corporation beneficially interested in lands held in party or corpotrust for him, or for said corporation, and the same may be trust may be taken in execution for the payment of his debts, or the cution. debts of said corporation, in the same manner as if the said party or corporation were seised or possessed of such lands.

7.

in six years after

Execution as against lands may issue at any time Execution withwithin six years from the signing of the judgment, with- judgment. out a scire facias or leave of the court.

tor or party en

to payment under final

8. The judgment creditor and party entitled to pay- Judgment credi ment under a final decree of the Supreme Court, may titled order execution to be levied on the whole or any por- decree may levy tion of the real estate lying within any county or district on whole or porwhere the judgment or decree is registered, as provided in the first section.

tion of real estate

creditor

9. Where a judgment or decree has been so registered After a year, for the period of one year, and no levy has been made on ment subsequent judg the real estate bound thereby, any judgment creditor, or may compel levy. party entitled under any such decree, whose judgment or decree has been subsequently registered, may by a written notice require the prior judgment creditor or creditors, or prior party or parties entitled under such decree, to levy on and proceed to sell the real estate within three months from the service of such notice.

creditor loses

10. If none of the prior judgment creditors, or the If no levy, prior prior parties entitled under such decree, shall levy and take preference. effective steps to sell such real estate, within said period of three months from the service of such notice, the party giving the notice shall acquire a preference over the judgment creditor or creditors, or party or parties entitled under such decree, upon whom such notice has been served.