manner; and the whole shall be paid by the parties in pro- CHAP. 102. portion to their respective shares or interests in the premises; except only the cost of a trial of any issue joined in the case, as to which a different provision is before made.

judgment in

46. Every person holding any lands under a partition Titles under made by virtue of this Chapter shall be considered as hold- partition, how ing them under an apparently good title, so that in case of considered. eviction he shall be entitled to compensation for any improvements made thereon.

how taken, and

peal.

47. All proceedings connected with the partition of Proceedings, lands under this Chapter may be taken either at common before whom; law or in equity; and all necessary rules and orders there- exception; apunder may be granted by the Judge in Equity, by the Supreme Court, or by a judge thereof at chambers, except where the trial of an issue before a jury shall become necessary; and all orders required by this Chapter, to be made by the Court, may be made by a judge, subject to an appeal' from any such order to the Court at its next sittings in the county.

single judge

48. Every order made in pursuance of this Chapter by Order of a a single judge, not sitting in open court, shall be liable to liable to be rebe rescinded or altered by the Court in like manner as altered. other orders.

scinded or

and heirs either

portion thereof,

of doing so from

judge may

49. Whenever any real estate is sought to be divided, When real eseither in a case of intestacy or under a will amongst the to be divided, parties entitled to share therein, or among tenants in com- decline to acmon under the authority of the Supreme Court in proceed- ceptest the or ings in partition, and such real estate or any part thereof or are incapable owing to any cause cannot be actually divided by metes minority, &c., and bounds without detriment and disadvantage to the order sale at parties entitled thereto; in case the heirs or other parties public auction. interested in such division shall decline to accept such estate or portion thereof offered to them, or shall by absence, incapacity, or minority be prevented from accepting such estate or parcel thereof, the Judge in Equity or any other 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 Net proceeds such manner as such judge may direct, and the net pro- parties interceeds of such sale shall be divisible among the parties ested. entitled to said estate. And such judge shall have power rect deed to be to direct a deed thereof to be executed, by which the ing title.' purchaser shall have all the title of the several heirs or parties represented in 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.

divided among

Judge may di

executed, pass

CHAP. 103.

In actions for money secured by mortgage,

defendant may and have a re

pay into court

conveyance.

Proceedings where one or

CHAPTER 103.

OF THE SALE OF LANDS UNDER FORECLOSURE OF MORTGAGE.

1. When actions of ejectment by a mortgagee or actions on bonds or notes secured by mortgage, or on any covenant in the mortgage, are brought in the Supreme Court, and no suit touching the same matter is pending in the 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.

2. In case such mortgagor, or any one of several of more of mortga- such mortgagors, be an absent or absconding, debtor, a gors absent may declaration in ejectment or other process may be served absent debtors. upon the tenant, if any, in possession of the lands, and

be as in cases of

Notice to be given to such parties as in

be defendants.

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 suffi cient 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 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.

3. In case any persons beside the mortgagor are inte rested in the lands who would require to be made defendchancery would ants, 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

4. In case the defendant shall neglect to pay the gaged premises. 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 CHAP. 104. the county wherein the lands lie.

absent debtor.

5. In case the defendant shall be an absent or abscond- Re-hearing provided where ing debtor he shall be entitled to a re-hearing at any time defendant is an 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 should be reversed on such re-hearing.

its effect.

6. The deed shall be executed and delivered by the Sheriff's deed, Sheriff to the purchaser, 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 described; and the Court Writ of possesmay award a writ of possession upon judgment being had. sion may issue. 7. The Sheriff shall, out of the proceeds of the sale, pay Proceeds of sale, to the plaintiff the sum due to him, and shall pay over the how applied. residue, if any, to such person as the Court shall direct.

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

have power of

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

CHAPTER 104.

OF THE SALE OF LANDS UNDER EXECUTION.

shall bind lands.

1. Any judgment recovered in the Supreme Court shall Judgments bind the real estate of the debtor from the time such Judg ment shall be recorded in the books of registry for the county or district wherein such real estate is situate; and Partial release. the release from a judgment of part of any lands or hereditaments charged therewith shall not affect the validity of the judgment as to the lands or hereditaments remaining unreleased, or as to any other property not speci fically 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 Proviso.

CHAP. 104. levied upon until one year after the registry of the judg ment as aforesaid.

Interest of

2. The interest of any mortgagor of real estate may be be levied on, &c. 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.

ecution of

to place pur

tion of mortgagor at time of

judgment, &c.

Fale under ex- 3. The effect of such seizure or taking in execution, mortgaged lands sale and conveyance of any such mortgaged lands and chaser in posi- tenements shall be to vest in the purchaser, his heirs and assigns, all the interest of the mortgagor therein at the time the judgment 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 pur chaser, 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 satisfaction had been effected by the mortgagor; and on payment of the mortgage money to the mortgagee by the purchaser, his heirs, or assigns, the mortgagee, his heirs 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:

Certificate to be

given by mortgagee to

purchaser pay

ing off mortgage.

Effect of certificate.

Mortgagee may

To the Registrar of the County of

who

I, A. B., of, do certify that C. D., of has become the purchaser of the interest of E. F., of 9 has satisfied all money due upon a certain mortgage made by the said E. F. to me, [or as the case may be,] bearing date the day of one thousand eight hundred and

and registered at on the day of in the year in Libro, Folio - and that such mortgage is therefore discharged. As witness my hand this dred and

Witness, E. H.

-day of

one thousand eight hun

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

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

5. The interest of the party beneficially interested in CHAP. 104. lands held in trust for him, may be taken in execution for Interest of cestui the payment of his debts in the same manner as if he were que trust may be seised or possessed of such lands.

sold under exe

cution.

within six years

6. Execution as against lands may issue at any time Execution within six years from the signing of the judgment, with after judgment. out a scire facias or leave of the Court.

part of lands in

7. The plaintiff may order execution to be levied on Plaintiff may the whole or any portion of the real estate lying within levy on whole or any county or district where the judgment is registered county. as provided in the first section.

subsequent judgment creditor may, compel levy.

8. Where a judgment has been so registered for the After a year period of one year, and no levy has been made on the real estate bound thereby, any judgment creditor whose judg ment has been subsequently registered, may, by a written notice, require the prior judgment creditor to levy on the real estate within three months.

creditor loses preference.

9. If the prior judgment "creditor shall not levy, the If no levy, prior party giving the notice shall acquire a preference over the judgment creditor to whom such notice has been given.

levied on without

10. The Sheriff upon receiving such execution, shall, Lands to be at the expiration of the one year, levy on such lands with appraisement, out appraisement, and shall cause to be inserted for thirty and advertised days next preceding the day of sale, in the Royal Gazette Gazette, &c. newspaper, and also, except in the County of Halifax, in any newspaper which may be published in the county or district wherein the lands are situate, an advertisement containing a description of the lands directed to be levied Contents of adon, stating that such lands have been taken in execution at the suit of the plaintiff against the defendant, the time and place fixed for such sale, and having appended thereto the names of the Sheriff and the attorney of the plaintiff.

vertisement.

days advertise

shall sell to

11. The Sheriff, after causing copies of such advertise- After twenty ment to be posted up in the most public places of the ment by handtownship or settlement wherein the lands lie, for at least bills, sheriff twenty days previous to the time appointed for the sale, highest bidder. shall proceed to sell the same at public auction to the highest bidder.

by notice require

be sold first.

12. If the defendant, by notice in writing delivered Defendant may to the Sheriff at least ten days previously to the sale, any particular require that certain portions of the land so advertised be part of land to first sold, the Sheriff shall cause the same to be first put up for sale, and if a sufficient sum shall be realized therefrom to satisfy the execution, interest and expenses, no other part of such lands shall be sold; otherwise he shall proceed with the sale of the remainder.

13. The Sheriff shall deliver to the purchaser a deed Sheriff's deed, of such lands, which shall be sufficient to convey to the its effect.