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due; and if the residue do not bear interest, a deduction shall be made therefrom by discounting the legal interest.

Sec. 8. In all cases where the proceeds of sale shall be more than sufficient to pay the amount due and costs, the surplus shall be paid to the mortgage debtor, his heirs, or assigns.

CHAPTER 102.

ACTION FOR A NUISANCE.

SECTION

1. What shall be deemed a nuisance.

SECTION

2. Judgment in an action for a nuisnnce.

Section 1. Whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and the subject of an action.

Sec. 2. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance, and by the judgment the nuisance may be enjoined or abated as well as damages recovered.

CHAPTER 103.

OF ACTION TO RECOVER THE POSSESSION OF REAL PROPERTY, AND TO

DETERMINE CONFLICTING CLAIMS THERETO.

SECTION

SECTION 1. Interest in real property may be recov- 8. When judgment for damages and costs ered by the party entitled.

only. 2. Landlord may be substituted for tenant. 9. Action not prejudiced by alienation. 3. Service where defendant is a non-resi.

10. Foreclosure and sale necessary. dent.

11. Provis on as to leases. 4. What the complaint shall contain. 12. Court may allow a party to enter for the 5. What the answer shall contain.

purpose of survey or measurement. 6. Judgment against tenant conclusive 13. Jury may award exemplary damages.

where landlord bas received notice. 14. Action for quieting title. 7. No proof of possession necessary where 15. Provision as to an action against a co. there is defence.

tenant. Section 1. Any person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same by action, to be brought against the tenant in possession; if there is

no such tenant, then against the person claiming the title or some interest therein.

SEC. 2. Whenever it appears that the defendant is only a tenant, the landlord may be substituted, reasonable notice thereof being given.

Sec. 3. When the defendant is a non-resident, service may be had upon his resident agent for the property with the like effect as though made upon the principal; or service may be had by publication, as in other cases.

SEC. 4. The plaintiff in his complaint shall state that he is entitled to the possession of the premises, particularly describing them, the interest he claims therein, and that the defendant unlawfully keeps him out of possession, and the damages, if any, which he claims for withholding the property.

Sec. 5. The answer of the defendant shall set forth under what claim of right, if any, he holds possession ; and if as mere tenant, the name and residence of his landlord shall be given ; and if he does not defend for the whole premises, he shall specify for what particular part he does defend.

Sec. 6. In an action against the tenant, the judgment shall be conclusive against a landlord who has received notice as hereinbefore provided.

Sec. 7. Where the defendant makes defence, it shall not be necessary to prove him in the possession of the premises.

Sec. 8. If the interest of the plaintiff expire before the time in which he could be put in possession, he shall obtain a judgment for damages and costs only.

Sec. 9. An action for the recovery of real property against a person in possession, shall not be prejudiced by any alienation made by such person either before or after the commencement of the action.

Sec. 10. A mortgage of real property shall not be deemed a conveyance, so as to enable the owner of the mortgage to recover possession of the real property without foreclosure and a sale according to law.

Sec. 11. When, in case of a lease of real property and the failure of the tenant to pay rent, the landlord has a right to re-enter for such failure, he may bring an action to recover possession of the property; but if at any time before judgment in such action the lessee, or his successor in interest, pay to the plaintiff or bring into

court the amount of rent then in arrear, with interest and the costs of action, and perform the other covenants and agreements on the part of the lessee, he shall be entitled to the possession according to the terms of the lease.

Sec. 12. The court, on motion, and after notice to the opposite party, may, for cause shown, grant an order allowing the party applying therefor to enter upon the property in controversy, and make survey and admeasurement thereof for the purposes of the action. The order shall describe the property, and a copy thereof shall be served upon the owner or person having the occupancy and control of the land.

Sec. 13. In case of a wanton aggression on the part of a defendant, the jury may award exemplary damages.

Sec. 14. An action may be brought by any person either in or out of possession, or by one having an interest in remainder or reversion, against another who claims title to, or interest in, real property, adverse to him, although the defendant may not be in possession thereof, for the purpose of determining and quieting the question of title. The rules in this chapter prescribed shall in such cases be observed as far as they are applicable. If in such cases the defendant disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the defendant shall recover costs.

Sec. 15. In an action by a tenant in common or joint tenant of real property, against his co-tenant, the plaintiff must show, in addition to his evidence of right, that the defendant either denied the plaintiff's right, or did some act amounting to such denial.

CHAPTER 104.

OF PARTITION OF REAL PROPERTY.

Section

1. Who may be compelled to divide lands.
2. )
3.
4. Proceedings on a petition for a partition.
5.
6.
7. No partition against the will of a testator.

SECTION

8. Three commissioners to be appointed. 9. Commissioners to take an oath. 10. Two or more shares may be set off

together. 11. Commissioners to give notice. 12. Acts of a majority valid. 13. Guardians may act for their wards.

SECTION
14. Return of commissioners.
15. Return of commissioners may be set

aside.
16. Any lien to remain in full force upon

the part assigned. 17. Widow to be mado a party and have

her dower assigned. 18. Court may order a sale. 19. Sale to be made by a commissioner. 20. Court may order a conveyance.

SECTION
21. Commissioner not to become a purchaser.
22. Money to be paid by commissioner to

the parties entitled.
23. Proceedings not to abate by death of a

party. 24. Court to make proper allowance to com

missioners. 25. Rights of lessee not to be affected. 26. Who may appear and have the pro

ceedings opened.

SECTION 1. All persons holding lands as joint tenants, or tenants in common, or tenants in coparcenary, may be compelled to divide the same in the manner hereinafter provided.

Sec. 2. Any such tenant may apply to the circuit court by petition, setting forth a description of the premises, and the rights and titles therein of the parties interested.

Sec. 3. On the filing of such petition, a summons to appear and answer thereto shall be issued by the clerk, and served personally on each of the said parties, if they shall be found ; if not found, by leaving a copy thereof at their last place of residence; or if any of them are non-residents of this District, or if in the petition it is alleged that their names are unknown to the petitioner, and such nonresidence or want of knowledge be verified by affidavit, or if it shall appear by affidavit, or by the return of the officer having the summons to serve, that the residence of such defendants is unknown, the court, or any judge thereof, may order notice of the pendency of such petition to be given at least for three weeks successively in some newspaper published in this District..

Sec. 4. It appearing to the court that such summons has been served ten days before the first day of the term, and when publication as aforesaid is required, that the same has been made thirty days previous to such term, the court shall proceed to hear such petition. Any person interested in such estate may appear and show why the petitioner ought not to have partition as prayed for ; and the further pleadings shall be conducted, and the issues joined shall be determined as in other cases.

Sec. 5. If any person not named in the petition shall appear and plead as a defendant, or allege any title to any part of the premises, the petitioner may reply that such person has no estate in the premises,

and also any other matter in like manner as if he had not disputed such person's right to appear. If it shall appear that such person has no estate in the lands, the matter of his objection to the partition shall be no further inquired of.

Sec. 6. If, upon trial, or upon default, or otherwise, it shall appear that partition ought to be made, the court shall make an order that partition be made to the parties who may desire the same, specifying therein the share assigned to each, and taking into consideration the advancements to heirs of a person dying intestate ; and the residue of the premises shall remain for the persons entitled thereto, subject to a future partition.

Sec. 7. The court shall not order or affirm partition of any real estate contrary to the intention of a testator expressed in his will.

Sec. 8. Upon an order for partition, the court shall appoint three disinterested freeholders, not of kin to any of the parties, as commissioners, who shall make partition of such lands in pursuance of the order of the court.

Sec. 9. Before proceeding to discharge their duties, such commissioners shall take an oath faithfully to perform the same, which oath shall be administered by any judge of the court, and a certificate thereof shall be endorsed on the warrant issued to the commissioners to make such partition.

Sec. 10. Two or more persons may, if they choose, have their shares set off together.

Sec. 11. The commissioners shall give sufficient notice of the time and place appointed for making the partition to all persons interested therein who are known and within this District, that they may be present at the making thereof.

Sec. 12. All the commissioners shall meet for the performance of any of their duties, but the acts of a majority of them shall be valid. Vacancies shall be filled by the court, or by a judge in vacation.

Sec. 13. In all proceedings under this chapter guardians may act for their wards as their wards might have acted being of age. The guardian of an infant, and the person entitled to the custody and management of the estate of an insane person, or other person adjudged incapable of conducting his own affairs, may consent to a partition without any proceeding by petition as aforesaid, and agree upon the share to be set off to such infant or other person entitled,

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