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with her husband in the grant, sale or mortgage, or otherwise lawfully bar or exclude herself from her dower. Sec. 7. And be it further enacted, That where the hus- Mode of
conveying band and wife, being of lawful age, are seized of any lands, the wife tenements or other real estate in the right of the wife, they estate. shall be authorized to convey the same by deed or other instrument in writing, signed, sealed and delivered by them respectively; but in every such case, the wife acknowledging such deed or instrument shall be examined privily and apart from her husband, and shall declare to the officer taking such acknowledgment, that the deed or instrument, shewn and explained to her by such magistrate, is her voluntary act, and that she doth not wish to retract the same; and if the wife, on such privy examination, shall refuse to make such acknowledgment, the deed or other instrument, executed by the husband and wife as aforesaid, shall not operate to convey to the grantee named in such deed or instrument, any other or greater estate in the premises described in such deed, than what belongs to the husband.
Sec. 8. And be it further enacted, That by deed of bargain Deed to and sale, by deeds of lease and release, by covenant to
the posstand seized to use, or by deeds operating by way of cov- session. enant to stand seized to use, or by any other deeds signed, sealed, delivered and acknowledged, by the party hav. ing good and lawful right and authority thereto, the possession of the bargainor, relessor, grantor or covenantor, shall be transferred to the bargainee, relessee, grantee, or person entitled to the use of the estate or interest which such person hath or shall have in the use, without livery of seizin, or other act or ceremony whatever.
Sec. 9. And be it further enacted, That any mortgagee of Mortgages lands, tenements or other real estate, his heirs, executors, how to be
discharge administrators or assigns, having received full satisfaction ed. for the money due on such mortgage, shall, at the request of the mortgagor, his heirs, executors, administrators or assigns, and at his or their cost, acknowledge and cause satisfaction and payment to be entered on the margin or face of the record of such mortgage, and shall sign and seal the same, which shall for ever afterwards discharge, defeat and release such mortgage, and perpetually bar all actions to be brought thereupon in any court of record : that if any mortgagee, his heirs, executors, administrators or assigns, shall not, within ten days after a request made in that behalf, and a tender of all reasonable charges, re
pair to the town-clerk's office, and there make, sign and seal an acknowledgment as before directed, or otherwise make and execute a release and quitclaim of the estatè so mortgaged, and acknowledge the same before some proper officer, he or they so refusing shall be liable to make good all damages that shall accrue for want of such discharge or release, to be recovered by an action of the case in a court of record; and in case judgment shall pass
against the party sued, he or they shall pay unto the plainProviso, tiff treble cost upon such suit: Provided nevertheless, That
nothing herein contained shall be construed to defeat, invalidate, annul or render ineffectual, any other legal discharge, payment, satisfaction or release of any mort
gage. Tenant in Sec. 10. And be it further enacted, That if any person, betail may devise oring of full age and of sane mind, shall be seized of any convey in estate in fee tail, he shall have a right to convey the same see simple.
in fee simple by his last will and testament, or by deed duly executed under his hand and seal, and acknowledged before the supreme judicial court, or any court of common pleas in this State; and such conveyance shall vest an estate in fee simple in the grantee, his heirs and assigns, and shall bar the tenant in tail, his heirs and assigns, and all others who may claim the same in remainder or reversion, expectant upon the determination of such estate tail.
1798 An act concerning Partition and estates holden in Coparcenary,
common and joint tenancy. Joint ten- SECTION 1. Be it enacted by the General Assembly, and by pellable the authority thereof it is enacied, That all tenants in comto make mon, joint tenants and coparceners, who now are, or herepartition.
after may be, actually seized or possessed of any estates of inheritance in their own rights, or in the rights of their wives, and all joint tenants and tenants in common who now hold, or hereafter shall hold, jointly or in common, for term of life or years, with others who have or shall have estates of inheritance or freehold, in any lands, tenements or hereditaments, may be compelled to make par
tition between them of such lands, tenements or hereditBy writ of parti- aments, by a writ of partition; but no such partition betion.
tween tenants in common or joint tenants, who hold, or shall hold, estates for term of life or years, with others hold
ing equal or greater estates, shall be prejudicial to any en- Rights in
e reversion titled to the reversion or remainder, after the death of n the tenant for life, or after the expiration of the term for diced. years.
Sec. 2. And be it further enacted, That when any per- Absent son named defendant in such writ of partition shall not be parties an inhabitant of this State, and by reason of his absence fied. cannot be personally summoned to answer thereunto, legal service of said writ shall be made, by leaving a copy thereof with the tenant in possession (if any there be) of the estate whereof partition is demanded; and if the said person named defendant as aforesaid shall live within the United States, and shall not appear at the court to which said writ shall be returnable, to defend the same, the action shall be continued one term; and in such case, if the defendant does not then appear, it shall be the duty of the court to appoint some discreet and disinterested person as agent of such defendant, whose duty it shall be to defend such suit; and in case judgment shall be rendered for partition, to attend to the partition to be made, and therein take care of the interest of the person for whom he shall have been appointed agent as aforesaid : Provided always, That no judgment for partition shall be proviso. rendered in any case against a defendant who shall be beyond sea at the time of the service of such writ of partition, and shall not have been absent twelve months, and shall be expected to return within six months.
Sec. 3. And be it further enacted, That in any action of Infants, partition, where the defendant shall be an infant, non com- &c. to
have pos mentis, or otherwise incapacitated to take care of his guardians right and estate, and shall have no lawful guardian, it shall appointed. be the duty of the court before whom such action shall be commenced, to appoint some discreet and disinterested person as guardian, to defend such infant, non compos mentis, or otherwise incapacitated person, against such suit; and in case of judgment for partition, to attend to Their duthe partition to be made, and therein take care of the in- ty. terest of the person for whom he shall be appointed guardian.com ons on 600.000
Sec. 4. And be it further enacted, That either party may Appead appeal from the judgment of the court of common pleas, granted. that partition shall be made ; but if no such appeal shall be prayed in open court, within two days next after such judgment, the same shall be final; and it shall be the du
beyond schall not have en within six
Partition ty of such court thereupon, on the motion of the plaintift, how to be
de in such writ of partition, to appoint, at their discretion, common three or five discreet, impartial and disinterested freepleas.
holders, to make partition pursuant to such judgment, who shall be sworn or affirmed to the faithful discharge of their trust; and it shall be the duty of the persons so appointed, first giving reasonable notice to the respective parties, to cause a just partition of the estate to be made amongst the respective parties, according to their several rights, as ascertained by the judgment of the court ordering such partition, and to make report of their proceedings, with a plat of the division by them made, to the court by whom they shall have been appointed, at their next term: and if no sufficient cause shall be shewn for rejecting the said report, judgment shall be rendered thereon in conformity
thereto. In the su. Sec. 5. And be it further enacted, That if an appeal from
any judgment of the court of common pleas for making partition shall be prayed as aforesaid, and on hearing of the case before the supreme judicial court, judgment shall therein be rendered for partition, it shall be the duty of the said supreme judicial court to appoint in like manner, at their discretion, three or five discreet, impartial and disinterested freeholders, to make partition pursuant to the judgment of said court, who shall cause partition to be made in like manner, and under the same regulations as are above prescribed, in case the said judgment for parti
tion had been rendered in the court of common pleas. Costs by Sec. 6. And be it further enacted, That in all actions of
partition, the court before whom the same may be pendbe paid.
ing, may adjudge and determine, as to them shall appear equitable and just, relative to the apportionment of costs among the parties, plaintiff and defendant, by dividing the same equally, or subjecting either party to the payment
of the whole or any part thereof.. . Ejectment Sec. 7. And be it further enacted, That in actions of waste, brought ejectment, or other actions concerning any estate holden by tenant or claimed in coparcenary, common or joint tenancy, in com
where the possession of such estate claimed is the object of the suit, the same may be commenced by all, or any two or more of the coparceners, tenants in common or joint tenants, or the same may be brought by each one for his particular share of such estate.
Sec. 8. And be it further enacted, That all gifts, grants, feoffments, devises and other conveyances of any lands,
Sec. 6. And endered in the ne said judgment fonons as
how to be
offmente Ind be is much estate ought bp
tenements and hereditaments, which shall be made to two What
shall be or more persons, whether they be husband and wife or å otherwise, and whether for years, for life, in tail or in fee, tates in
common. shall be taken, deemed and adjudged to be estates in common, and not in joint tenancy, unless it is or shall be therein expressly said, that the grantees, feoffees or devisees shall have or hold the same lands, tenements or hereditaments, as joint tenants, or in joint tenancy, or to them and the survivor or survivors of them, or unless other words be therein used, clearly and manifestly shewing it to be the intention of the parties to such gifts, grants, feoffments, devises or other conveyances, that such lands, tenements and hereditaments should vest and be holden as joint estates, and not as estates in common.
An act concerning the Redemption of Mortgages. 1767, '89,
'98, 1822. Section 1. Be it enacted by the General Assembly, and by In actions the authority thereof it is enacted, That in all actions of eject- ofteject
ment on ment, brought to any court of common pleas, or which mortshall be pending before the supreme judicial court, for gages
court to possession of any mortgaged estate, and in which there ascertain shall be existing at the time an equity of redemption, and the sum the same being shewn by the defendant's plea, the court, on motion of the defendant, shall be authorized, by themselves, or by three judicious and indifferent men, by them to be appointed, to ascertain, according to the rules of equity, the just sum due on such mortgage; and shall
And renthereupon, in such actions, render a conditional judgment, der a conthat if the mortgagor, his heirs, executors, administra- ditional,
judgment. tors or assigns, shall pay unto the plaintiff in such action, or deposit in the clerk's office for him, the sum adjudged due as aforesaid, within two months from the time of entering up judgment, with interest, then the mortgage, or deed of bargain and sale operating as such, shall be void and discharged; otherwise that the plaintiff shall have his writ of possession. .
Sec. 2. And be it further enacted, That all real estates Mortgagconveyed or pledged by mortgage or deed of bargain and
Bananid redeemasale, with defeazance, shall be redeemable by the mort, ble. gagor or vendor, his heirs, executors, administrators or assigns, on paying the monies borrowed thereon, with interest, or performing the condition on which the same was conveyed, or mortgaged; deducting the rents and profits
all pay unto the executors, al judgment, And