ARTICLE SIXTH. Of the Powers and Proceedings of the Court, upon Bills for the SEC. 151. Upon such bills, court may decree sale of premises. 152. May decree payment of balance due after sale. 153. Suits at law prohibited, after filing bill. 154. Payment of balance by surety of mortgagee, may be decreed. 155. Proceedings at law to be stated in bill. 156. In certain case, execution at law must have been returned. 157. Sales of mortgaged premises, when and by whom to be made. 158. Deeds thereon; their effect. 159. Proceeds of sales, how applied. 160. Surplus, when to be invested. 161. Defendant may dismiss bill, on paying portions, &c. due. 162. Proceedings if payment made after decree for sale. 163. Proceedings if no payment made; when part of premises to be sold. 164. Proceedings to collect subsequent instalments. 165. In what cases, the whole of mortgaged premises to be sold. 166. Proceeds of sales, in such cases, how applied. ART. 6. balance due may be de $151. Whenever a bill shall be filed for the foreclosure or satisfac- Sale of premises may be tion of a mortgage, the court shall have power to decree a sale of the decreed. mortgaged premises, or such part thereof as may be sufficient to discharge the amount due on the mortgage, and the costs of suit.47 $152. When a bill shall be filed for the satisfaction of a mortgage, Payment of the court shall not only have power, to decree and compel the delive- after sale, ry of the possession of the mortgaged premises to the purchaser there- creed. of, but on the coming in of the report of sale, the court shall also have power to decree and direct the payment, by the mortgagor, of any balance of the mortgage debt, that may remain unsatisfied after a sale of the premises, in the cases in which such balance is recoverable at law; and for that purpose, may issue the necessary executions, as in other How compelcases, against other property of the mortgagor, or against his person. $153. After such bill shall be filed, while the same is pending, Suits at law and after a decree rendered thereon, no proceedings whatever shall be had at law, for the recovery of the debt secured by the mortgage, or any part thereof; unless authorised by the court of chancery. led. prohibited. surety of $154. If the mortgage debt be secured by the obligation or other Payment by evidence of debt hereafter executed, of any other person besides the mortgagor. mortgagor, the complainant may make such person a party to the bill, and the court may decree payment of the balance of such debt remaining unsatisfied, after a sale of the mortgaged premises, as well against such other person as the mortgagor, and may enforce such decree as in other cases. proceeding $155. Upon filing a bill for the foreclosure or satisfaction of a Bill to state mortgage, the complainant shall state therein, whether any proceed- at law. ings have been had at law, for the recovery of the debt secured thereby, or any part thereof; and whether such debt, or any part thereof, has been collected. (47) 1 R. L. p. 490, § 11, and 493, § 21. TITLE 2. When execu $156. If it appear that any judgment has been obtained in a suit at law, for the monies demanded by such bill, or any part thereof, no tion must be proceedings shall be had in such case, unless to an execution against the property of the defendant in such judgment, the sheriff shall have returned that the said execution is unsatisfied, in whole or in part, and that the defendant has no property whereof to satisfy such execution, except the mortgaged premises. returned. Sales, by whom and when to be made. Deeds there on. $157. All sales of mortgaged premises, under the decree of the court of chancery, shall be made by a master in chancery, in the county where the premises or some part of them are situated, unless otherwise directed in the decree of sale.48 $158. Deeds shall thereupon be executed by such master, which shall vest in the purchaser the same estate, (and no other or greater,) that would have vested in the mortgagee, if the equity of redemption Their effect. had been foreclosed; and such deeds shall be as valid as if the same were executed by the mortgagor and mortgagee, and shall be an entire bar against each of them, and against all parties to the suit in which the decree for such sale was made, and against their heirs respectively, and all claiming under such heirs.48 Proceeds of cales. Surplus, when to be invested. When bill to be dismissed, of sum due, &c. $159. The proceeds of every sale made under the decree of a court of chancery, shall be applied to the discharge of the debt adjudg ed by such court to be due, and of the costs awarded; and if there shall be any surplus it shall be brought into court for the use of the defendant, or of the person who may be entitled thereto, subject to the order of the court.48 $160. If such surplus, or any part thereof, shall remain in the said court for the term of three months, without being applied for, the chancellor shall direct the same to be put out at interest, under the direction of the court, for the benefit of the defendant, his representatives or assigns, to be paid to them by the order of such court.48 $161. Whenever a bill shall be filed for the satisfaction or foreon payment closure of any mortgage, upon which there shall be due any interest, or any portion or instalment of the principal, and there shall be other portions or instalments to become due subsequently, the bill shall be dismissed, upon the defendant's bringing into court, at any time before the decree of sale, the principal and interest due, with costs." Proceedings to stay, in $162. If after a decree for sale entered against a defendant in certain case. such case, he shall bring into court the principal and interest due, with the costs, the proceedings in the suit shall be stayed; but the court shall enter a decree of foreclosure and sale, to be enforced by a further order of the court, upon a subsequent default in the payment of any portion or instalment of the principal, or of any interest thereafter to grow due. 49 (48) 1 R. L. p. 490, § 11. (49) Ib. § 12. ART. 7. When part of be sold. $ 163. If the defendant shall not bring into court the amount due, with costs, or if for any other cause, a decree shall pass for the complainant, the court shall direct a reference to a master, to ascertain premises to and report the situation of the mortgaged premises; and if it shall appear that the same can be sold in parcels, without injury to the interests of the parties, the decree shall direct so much of the said premises to be sold, as will be sufficient to pay the amount then due on such mortgage, with costs; and such decree shall remain as security for any subsequent default.47 instalments, $164. If in the case mentioned in the last preceding section, there Subsequent shall be any default subsequent to such decree, in the payment of any &c. portion or instalment of the principal, or of any interest due upon such mortgage, the court may, on the petition of the complainant, by a further order founded upon such first decree, direct a sale of so much of the mortgaged premises to be made under the said decree, as will be sufficient to satisfy the amount so due, with the costs of such petition and the subsequent proceedings thereon; and the same proceedings shall be had, as often as a default shall happen.17 to be sold. $ 165. If in any of the foregoing cases, it shall appear to the court, when whole that the mortgaged premises are so situated, that the sale of the whole of premises will be most beneficial to the parties, the decree shall, in the first instance, be entered for the sale of the whole premises accordingly.47 $166. In such case the proceeds of such sale shall be applied as Application of proceeds. well to the interest, portion or instalment of the principal due, as towards the whole or residue of the sum secured by such mortgage, and not due and payable at the time of such sale; and if such residue do not bear interest, then the court may direct the same to be paid, with a deduction of the rebate of legal interest, for the time during which such residue shall not be due and payable; or may direct the balance of the proceeds of such sale, after paying the sum due with costs, to be put out at interest, for the benefit of the complainant, to be paid to him, as the instalments or portions of the principal, or the interest, may become due, and the surplus for the benefit of the defendant, his representatives or assigns, to be paid to them on the order of the court.47 ARTICLE SEVENTH. Of Proceedings in relation to the Conveyance of Lands by Infants, and the Sale and Disposition of their Estates. SEC. 167. Infants holding lands in trust, &c. how compelled to convey. 168. Effect of such conveyance. 169. Specific performance, by infant heir, of contracts of ancestor, may be decreed. 171. Guardians to be appointed. 172. Guardians to give bond; condition thereof. TITLE 2. SEC. 173. Bond, when to be prosecuted. 174. Reference to master to examine application. Infant trus tees, compel 176. But no dispositon to be made contrary to any will. 177. Contracts for sales, &c. to be reported; conveyances thereon. 178. Effect of sales and conveyances. 179. Infant a ward of court; application of proceeds of sales. 180. Interest of infant in proceeds of sale. 181 & 182. How claim of dower in lands sold, to be satisfied. $167. Whenever any infant shall be seised or possessed of any head to convey lands, tenements or hereditaments, by way of mortgage, or in trust only, for others, the court of chancery, on the petition of the guardian of such infant, or of any person in any way interested, may compel such infant to convey and assure such lands, tenements and hereditaments, to any other person, in such manner as the said court shall direct. 48 Effect of conveyance. Performance of contract by $ 168. Every conveyance or assurance, made pursuant to such order, shall be as good and effectual in the law, as if the same were made by such infant when of lawful age. 48 $169. The court of chancery shall have power to decree, and comfont pel a specific performance, by any infant heir or other person, of any bargain, contract or agreement, made by any party who may die before the performance thereof, on petition of the executors or adminiştrators of the estate of the deceased, or of any person or persons interested in such bargain, contract or agreement, and on hearing all parties concerned, and being satisfied that the specific performance of such bargain, contract or agreement, ought to be decreed or compelled.49 Application real estate $ 170. Any infant seised of any real estate, or entitled to any term to sell, &c. of for years in any lands, may, by his next friend or by his guardian, apply to the court of chancery, for the sale or disposition of his property, in the manner herein after directed.5 infants. Guardians. To give bond. 50 $171. On such application, the court shall appoint one or more suitable persons, guardians of such infant, in relation to the proceedings on such application. 50 $172. The guardians shall give bond to the infant, to be filed with the register or assistant register, in such penalty, with such sureties, and in such form as the court shall direct, conditioned for the faithful Its condition. performance of the trust reposed; for the paying over, investing and When to be sued. accounting for all monies that shall be received by such guardians, according to the order of any court having authority to give directions in the premises; and for the observance of the orders and directions of the court, in relation to the said trust.50 $173. If such bond be forfeited, the court shall direct it to be prosecuted, for the benefit of the party injured.5 50 (48) 1 R. L. p. 148, § 7. (49) Laws of 1814, p. 129, § 3. (50) I b. p. 128, § 1; of 1815, p. 103, § 2. $174. Upon the filing of such bond, the court may proceed in a summary manner, by reference to a master, to inquire into the merits of such application.5 51 ART. 7. Reference to master. lands, when $175. Whenever it shall appear satisfactorily that a disposition sale, &c, of of any part of the real estate of such infant, or of his interest in any authorised. term for years, is necessary and proper, either for the support and maintenance of such infant, or for his education; or that the interest of such infant requires, or will be substantially promoted by, such disposition, on account of any part of his said property being exposed to waste and dilapidation, or on account of its being wholly unproductive, or for any other peculiar reasons or circumstances, the court may order the letting for a term of years, the sale, or other disposition of such real estate or interest, to be made by such guardian or guardians so appointed, in such manner, and with such restrictions, as shall be deemed expedient. 51 trary to a $176. But no real estate or term for years, shall be sold, leased But not conor disposed of in any manner against the provisions of any last will, will. or of any conveyance, by which such estate or term was devised or granted to such infant.51 be reported. $177. Upon an agreement for a sale, leasing or other disposition sales, &c. to of such property, being made in pursuance of such order, the same shall be reported to the court on the oath of the guardian making the same; and if it be confirmed, a conveyance shall be executed under Conveyanthe directions of the court. 52 ces. sales. $178. All sales, leases, dispositions and conveyances, made in Effect of good faith by the guardian, in pursuance of such orders, when so confirmed, shall be valid and effectual as if made by such infant when of full age.52 Application of proceeds of sales. $179. From the time of such application to the court, the infant shall be considered a ward of the court, so far as relates to such property, its proceeds and income; and the court shall make order for the application and disposition of the proceeds of such property, and for the investment of the surplus belonging to such infant, so as to secure the same for the benefit of such infant, and shall direct a return of such investment and disposition to be made on oath, as soon as may be, and shall require accounts to be rendered periodically by any guar- Accounts of dian or other person who may be entrusted with the disposition of the income of such proceeds. 53 guardians. fant in pro $ 180. No sale made as aforesaid, of the real estate of any infant, Rights of inshall give to such infant any other or greater interest or estate in the ceeds of sale. proceeds of such sale, than he had in the estate so sold; but the said proceeds shall be deemed real estate of the same nature as the property sold, 53 (51) Laws of 1814, p. 128, § 1; of 1815, p. 103, § 2 (52) Ib. p. 103, § 3 & 4. (53) Ib. § 5 & 6. |