entitled as of right to a judgment for abatement and removal, and to a warrant to be issued as before provided. executing war ment of nui sance. SECT. 4. The expense of abatement and removal shall be collected Expenses of by the officer in the manner damages and costs are collected upon exe- rant for abatecution; except that the materials of buildings, fences, or other things, removed 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. R. S. 106, § 8. 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 1852, 312 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. SECTION CHAPTER 140. OF THE FORECLOSURE AND REDEMPTION OF MORTGAGES.. POSSESSION AND FORECLOSURE. 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 10, 11. Mortgage, how foreclosed in such case. 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 redemp tion. 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 mort ga gee. 29. If money tendered, &c., exceeds sum due, amount due to be deducted, &c. SECTION 30. If mortgagee receives more than due, excess 31. New parties may be brought in. 32. Executors, &c., may tender and redeem ; 33. may bring suit upon tender by deceased. 34. Tender may be made to guardian, 35. Where execution for possession is satisfied, OPENING OF FORECLOSURE. 36. Foreclosure to be opened, in case, &c. MORTGAGES BY DEFEASANCE. 37. Conveyance with defeasance constitutes a mort- MORTGAGES WITH POWER OF SALE. 38. When power of sale in mortgage deed, demand- 39. Sale by mortgagor not to impair rights of 40. Party selling to report to court. Sale con- 42. Mortgagee, &c., may give notice and sell in 43. Affidavit or copy of record, evidence of due ex- 44. When sale under power shall bar dower. MORTGAGES TO THE COMMONWEALTH. 45. Mortgages to the commonwealth. 48. Suit in equity may be brought; service, judg- Foreclosure by R. S. 107, § 1. 110m. 31/ 5 Pick. 2 18. 111 m.335 19 Met. 172. 11 Met. 354,566. 2 Cush. 3.4. 10 Cu. h. 186. Certificate of 109.230 recorded. R. S. 167, § 2. 17 Mass. 429. 10 Cush. 163. 7 Gray, 203. Form of action 8 Met 517. Form of condi- POSSESSION AND FORECLOSURE. SECTION 1. After the breach of condition of a mortgage of real estate, the mortgagee may recover possession of the mortgaged prem ises by action in the manner hereinafter provided; or he may make an open and peaceable entry thereon, if not opposed by the mortgagor or other person claiming the premises; and such possession, obtained in either mode, continued peaceably for three years, shall forever foreclose the right of redemption. 12 Gray, 206. 16 Gray, 149, 561. 3 Allen, 324. 6 Gray, 128. 11 Gray, 478, 496. 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. 12 Allen, 397. 6 Cush. 179. SECT. 3. The mortgagee in an action for possession may declare on 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. 6 Gray, 128, 428. 8 Gray, 154, 198. 11 Gray, 267. 14 Gray, 110. 97 Mass, 23. 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 fourd due on the mortgage, with interest and the costs of the suit, the mort11 Gray, 30, 267, gage shall be void and the defendant shall hold the premises discharged thereof; otherwise, that the plaintiff shall have his execution for possession, and for costs of suit. 270. 12 Gray, 60. 4 Allen, 562. Same subject. Assignee of R. S 107, § 7. Proceedings in 10 Met. 174. 12 Met. 154. 16 Gray, 486. 6 Allen, 71. 8 Allen, 78. 9 Allen, 69. 10 Allen, 76. 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 mortgagee, 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. 11 Allen, 39. 14 Allen, 207. 101 Mass. 182 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 hold or recovering possession thereof, before breach of the condition of the subject to acmortgage, 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 133. amount of the clear rents and profits from the time of the entry shall 1 Gray, 512. be accounted for, and deducted from the sum due on the mortgage. count. 11 Met. 458. case. RS. 107, § 10. 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 foreclosed in such condition is broken, nor until after a notice in writing given by the mortgagee or the person claiming under him, to the mortgagor or the person claiming under him, that the former will thenceforward hold the premises for the breach of the condition, or for the purpose of foreclos- 9 Gray, 63. ing the mortgage. 6 Cush. 91. R. S. 107, § 11. SECT. 11. The person thus entitled to hold the premises for breach of Same subject. the condition may instead of such notice in writing make a new formal 13 Mass. 313. entry for the breach of the condition, or may bring an action therefor 6 Cush. 91. 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. SECT. 12. Such notice of intention and such new entry shall not be effectual for the purposes aforesaid, unless a certificate or deposition to prove the same is made and recorded, as before provided in the case an original entry for breach of the condition. REDEMPTION. of Certificate of entry to be re notice or new corded. R. S. 107, § 12. redeemed. 22 Pick. 401. 7 Gray, 279. SECT. 13. When the condition of a mortgage has been broken, the Mortgage may bo mortgagor or any person lawfully claiming or holding under him, may Rs. 107, § 18. redeem the same unless the mortgagee, or some person lawfully holding, 11. or claiming under him, has obtained possession of the premises for the 6 Gray, 128. breach of the condition, and has continued that possession for three years. See Ch. 118, § 123. 11 Gray, 276, 478. 15 Gray, 525. 10 Allen, 32. 13 Allen, 60. 100 Mass. 271. See 1862, 179, § 7. SECT. 14. The person entitled to redeem shall pay or tender to the Party redeeming mortgagee, or person lawfully claiming or holding under him, the whole do &c. sum then due and payable on the mortgage, and shall perform or tender R107, § 14. performance of every other condition contained therein; and if there 7 Ch. 22). has been a suit for recovering the premises, he shall pay or tender the 12 Gray, 102. costs if unpaid. to pay or tender 5 Met. 95. taken of rents, 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 &c. shall be allowed for all sums expended in reasonable repairs and improvements, all sums paid for lawful taxes and assessments, and all other necessary expenses in the care and management of the premises. If on such account there is a balance due from him, it shall be considered as so much paid towards the debt due on the mortgage. If 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 to years limited for redemption, before as well as after an entry for breach for redemption. of the condition; and if the mortgagee, or person claiming or holding RS. 107, 16. under him, does not accept the same and discharge the mortgage in 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. 6 Gray, 556. be made. Suit 97 Mass. 459. brought within one year. SECT. 17. The tender, if not accepted, shall not prevent the fore- Suit to be closure 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 had tendered into court sum tendered, &c. 1857, 105, § 2. 8 Allen, 363. Suit may be brought without R. S. 107, § 18. 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 the previous tender. 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 shail be found due from him, or to perform such other condition as the case requires. 7 Met. 157. Cush. 220. 7 Gray, 279. In suits in equity, court may at sum not in dis 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, in term time or vacation, ascertain and determine by reference to a 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. pute to be paid. 1857, 105, § 1. Costs upon redemption. R. S. 107, § 19. 10 Allen, 350. 105 Mass. 568. 16 Gray, 566. 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 sun.s 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 court may in their discretion award costs to either party as equity 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 wit or a copy thereof, with or without the bill, but with a description of the premises sought to be redeemed, attested by the officer, is deposited 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; other wise the depositing of such copy or writ shall be deemed the commencement of the suit. 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, er 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 sh 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 judg ment 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. for balance due from mortgagee. 6 Mass. 264. 9 100 Mass. 271. SECT. 28. If, upon a suit for redemption, it appears that the defend- Judgment, &c., ant has received from the rents and profits of the estate or otherwise more than is due on the mortgage, the court shall award judgment and execution against him for such sum as is due to the plaintiff'; and if there are several defendants, such judgment and execution may be 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 exceeds the sum found due on the mortgage, and when any sum is awarded to the plaintiff on account of the rents and profits received by 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. If money tencee is sum due, amount due to be R. S. 107, § 26. dered, &c., ex deducted, &c. ceives more than back. SECT. 30. If the mortgagee or person claiming or holding under him If mortgagee rereceives from the rents and profits of the premises, or upon a tender due, excess may made to him, or in any other manner, more than is due on the mortgage, be recovered and if no suit for redemption is brought against him, the mortgagor or R. 8. 107, § 27. other person entitled to such excess may recover it in an action of con- 1852, 312. tract for money had and received to his use. SECT. 31. If, during the pendency of a suit for redemption, it appears that any other person is interested therein, the court may cause him to be made a party thereto upon such terms as they shall 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. New parties may R. 9. 107, § 28. 100 Mass. 271. be brought in. may tender and may bring 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, redeem; and a suit for redemption commenced and prosecuted, as well by 104 Mass. 278. the executors or administrators as by the heirs or devisees of the 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 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. non tender by Rs. 107, § 31. deceased. 12 Gray, 318. 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. satisfied, mort discharge SECT. 35. When execution has issued on a judgment for possession Where execution and has been levied, if it shall be afterwards satisfied by payment of the for possession is amount due on the mortgage and costs, the mortgagee, his executors, gagee, &c., to 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. SECT. 36. If after the foreclosure of a mortgage the person entitled Foreclosure to be to the debt recovers judgment for any part of it, on the ground that the &c. opened, in case, f |