TITLE XXIII. understanding, and not subject to guardianship, and for a valuable consideration. CHAPTER 110. Partition when ed. SEC. 79. When any lands shall be held by the people of this state, state is interest and by individuals as tenants in common, proceedings for the partition thereof may be had against the people of this state in the circuit court, in the same manner as against individuals, and the like orders and decrees shall be had therein, and the proportion of the costs and expenses of such partition, adjudged to be paid by the people of this state, shall be certified by the attorney general, and paid out of the state treasury on the warrant of the auditor general. Service of sub pœna &c., on at SEC. 80. The subpoena to answer, and all notices required to be torney general. served in other cases, shall be served on the attorney general, who shall appear in behalf of the state, and attend to its interests. Claims barred by SEC. 81. The authority given by this chapter to proceed for the limitations, &c. partition of real estate, shall not authorise the revival or prosecution of any claim to lands which would, or otherwise might be barred by the statute of limitations, or by the acquiescence of any party having any such claim. Compensation for equality of partition. SEC. 82. Whenever partition shall be decreed by any circuit court, if it shall appear that it cannot be made equal between the parties, without prejudice to the rights and interests of some of them, the court may decree compensation to be made by one party to the other, for equality of partition, according to the equity of the case. Who liable to action for waste. When tenant lia his estate. CHAPTER 110. OF WASTE. SECTION 1. If any guardian, or any tenant by the curtesy, tenant in dower, or for term of life or years, or the assigns of any such tenant, shall commit or suffer any waste during their several terms or estates, of the houses, gardens, orchards, lands or woods, or of any other thing belonging to the tenements so held, without having a lawful license in writing so to do, they shall respectively be liable to an action on the case for such waste. SEC. 2. In case any such tenant shall let or grant his estate, and ble after granting still retain possession thereof, and commit waste, the party entitled to the reversion of the tenements, may maintain his action on the case for such waste against such tenant. Joint tenants and tenants in com mon. Suit by heirs. By whom action SEC. 3. If one joint tenant, or tenant in common, shall commit waste of the estate held in joint tenancy or in common, he shall be subject to an action on the case for such wase, at the suit of his co-tenant or tenants. SEC. 4. An heir, whether of full age or not, after coming into possession of the inheritance, may maintiain an action on the case for waste done in the time of his ancestor, as well as in his own time, unless a recovery shall have been had therefor by the executor or administrator of such ancestor. SEC. 5. Such action may be brought by the person having the next may be brought. immediate estate, in fee, or for life or years in the premises in question; or by any person who has the remainder or reversion in fee, or for life, after an intervening estate for life or years, and each of them shall recover damages according to his estate in the premises. TITLE XXIII. CHAPTER 110. SEC. 6. If the plaintiff in such action prevail therein, he shall have Judgment. judgment for double the amount of damages found by the jury. mission of waste SEC. 7. After the commencement of any action on the case for Staying the com waste, or of any action for the recovery of land, or of the possession by defendants. of land, the defendant shall not make any waste of the land in demand or premises in question, during the pendency of the suit; and if such defendant shall commit any waste thereon, or shall threaten or make preparations to commit waste thereon, the court in which the suit is pending, or any justice of the supreme court or circuit court commissioner, either in term time or vacation, shall have power, on the application of the pliantiff, to make an order restraining the defendant from the commission of any waste, or further waste thereon. ter attachment or SEC. 8. If any person shall commit, or threaten, or make prepara- Staying waste aftions to commit any waste on any real estate which shall be attached, execution levied. or levied upon by execution in any civil action, the court from which such execution or attachment shall have issued, or any one of the justices of the supreme court, or a circuit court commissioner, may, on the application of the plaintiff, either in term time or vacation, make an order restraining such person from committing any waste, or further waste thereon. execution. SEC. 9. Whenever any lands or tenements shall be sold by virtue Action for waste of an execution, issued upon any judgment or decree, the person to of land sold by whom a conveyance may be executed by the sheriff pursuant to such sale, may maintain an action on the case for waste against any person, for any waste committed by such person on the premises after such sale. SEC. 10. But no person lawfully entitled to the possession of any Exception. premises so sold, shall be liable to any such action for doing either of the acts authorized in the next section. waste. SEC. 11. Any person eutitled to the possession of lands or tene- Certain acts not ments sold under execution, may, until the expiration of fiteen months from the time of such sale, use and enjoy the same, as follows, without being deemed guilty of waste: 1. He may, in all cases, use and enjoy the premises sold, in like manner, and for the like purposes, in and for which they were used and applied prior to such sale, doing no permanent injury to the freehold: 2. If the premises sold were buildings, or any other erections, he may make necessary repairs thereto, but he shall make no alterations in the form or structure thereof: 3. If the premises sold were land, he may use and improve the same, in the ordinary course of husbandry; but he shall not be entitled to any crops growing thereon at the expiration of the said fifteen months: 4. He may apply any wood or timber on such land to the necessary reparation of any feuces, buildings or erections which may have been thereon at the time of the sale: 5. If the land sold is actually occupied by such person, he may take necessary firewood therefrom for the use of his family. SEC. 12. If the person against whom any order shall be made to Violation of or restrain waste, as provided in this chapter, shall, after the service of a der, how punishcopy thereof, commit any waste in violation of the said order, he shall ed. CHAPTER 111. TITLE XXIII. be liable to be proceeded against and punished in the same manner as for a violation of an injunction to stay waste, according to the proceedings of courts of equity; and for that purpose the court or officer making such order, shall possess full equity power and jurisdiction. SEC. 13. When complaint shall be made of the violation of any such order to restrain waste, the court or officer may order notice to be given to the person complained of, to show cause why he should not be committed. Notice to show cause. Form of commitment. How warrant to be executed. When defendant ed. SEC. 14. Upon satisfactory proof of such violation, such court or officer shall issue a warrant to the sheriff of the county, reciting such order and the violation thereof, and thereby commanding such sheriff to commit such person to close confinement, for such term of time, not more than one year, as shall be deemed expedient. SEC. 15. The sheriff shall execute such warrant accordingly, and shall commit the person named therein, without allowing him the liberties of the jail. SEC. 16. Such warrant may be superseded, and such person may may be discharg- be discharged by the court or officer committing him, upon receiving a bond, in such penalty, and with such sufficient sureties, as such court or officer may approve, to the person applying for the warrant of commitment, conditioned that such prisoner shall not commit any waste on such premises; which bond shall be delivered to such applicant for his use, and to be prosecuted by him for any breach of the condition thereof. Equity jurisdiction of circuit court. SEC. 17. The circuit court for each county shall have equity jurisdiction of all matters concerning waste, in which there is not a plain, adequate and complete remedy at law; and may grant injunctions to stay or prevent waste; and whenever it shall be necessary or proper to have any fact tried by a jury, such court may award a feigned issue for that purpose, as in other cases. Treble damages in certain cases. 8 Cowen, 115. Exceptions of certain cases. CHAPTER 111. OF TRESPASSES ON LANDS. SECTION 1. Every person who shall cut down or carry off, any wood, underwood, trees or timber, or shall girdle or otherwise de spoil or injure any trees on the land of any other person, without the leave of the owner thereof, or on the lands or commons of any city, township, village or other corporation, without license therefor given, shall be liable to the owner of such land, or to such corporation, in three times the amount of damages which shall be assessed therefor in an action of trespass, by a jury, or by a justice of the peace in the cases provided by law. SEC. 2. If, upon the trial of any such action, it shall appear that the trespass was casual and involuntary, or that the defendant had probable cause to believe that the land on which such trespass was committed was his own; or that such wood, trees or timber, were taken for the purpose of making or repairing any public road or bridge; judgment shall be given to recover only the single damages assessed. TITLE XXIII. SEC. 3. If any person shall be ejected or put out of any lands or tenements in a forcible and unlawful manner, or being put out, be afterwards holden and kept out by force, or with strong hand, he shall Forcible entry be entitled to maintain an action of trespass, and shall recover therein or detainer. three times the amount of damages assessed by the jury or a justice of the peace in the cases provided by law. LIBRARY OF THE CHAPTER 112. OF ACTIONS FOR PRIVATE NUISANCES. RSITY OF Judgment in ac SECTION 1. In actions on the case for a private nuisance, when the plaintiff prevails, he shall, in addition to the usual judgment for dama- tion for nuisance. ges and costs, also have judgment that the nuisance be abated and 11 Pick., 452. removed, unless the justice holding the circuit court at which any issue of fact joined therein shall be tried, shall certify in the minutes of such trial, that the abatement thereof is unnecessary. warrant in case SEC. 2. In case of a judgment that the nuisance be abated and Execution and removed, the plaintiff shall have execution in the common form for of judgment that his damages and costs, and a separate warrant to the proper officer, nuisance be aba requiring him to abate and remove the nuisance, at the expense of the defendant, in like manner as public and common nuisances are abated and removed. SEC. 3. The court may, on the application of the defendant, order ted. How warrant a stay of such warrant for such time as may be necessary, not exceed- may be stayed. on warrant, how SEC. 4. The expense of abating and removing the nuisance pursu- Expense of reant to such warrant, shall be collected by the officer in the same man- moving nuisance ner as damages and costs are collected upon execution, excepting collected. that the materials of any buildings, fences, or other things that may be removed as a nuisance, may be sold by the officer, in like manner as goods are sold on execution for the payment of debts; and the of ficer may apply the proceeds of such sale to defray the expenses of the removal, and shall pay over the balance thereof, if any, to the defendant upon demand; and if the proceeds of the sale are not sufficient to defray the said expenses, he shall collect the residue thereof as before provided. tion in case of SEC. 5. The circuit court for any county shall have equity jurisdic- Equity jurisdiction in all matters concerning nuisances, where there is not a plain, nuisance, &c. adequate and complete remedy at law, and may grant injunctions to stay or prevent nuisances. TITLE XXIII. CHAPTER 113. Reversioners, &c, when to be ad CHAPTER 113. GENERAL PROVISIONS CONCERNING ACTIONS RELATING TO REAL ESTATE. SECTION 1. If any tenant for life, in dower, or by curtesy, or any mitted to defend. tenant for years, be impleaded, and the person to whom the reversion or remainder appertains, shall come into court before any trial shall be had in such action, or before judgment by default therein, and pray to be received to defend his right, he shall be received for that purpose, and shall be permitted to plead to the action, upon such terms as the court may deem just. When to sue af nant. SEC. 2. If any tenant for life or years, make default or give up any ter default of te lands demanded, so that judgment be given on such default or surrender, the person to whom the reversion or remainder of such lands appertains, may, after the termination of the estate of such tenant, have an action of ejectment to recover the same lands. When wife to be admitted to de fend. Wife may reco SEC. 3. When a husband and wife shall be impleaded, if the husband absent himself, or will not defend the rights of the wife, if she apply before judgment, she shall be admitted by the court to defend without her husband. SEC. 4. If the busband lose by default, any land which was the ver after default right of his wife, the wife, after the death of her husband, may have an action of ejectment to recover the same, and the judgment by default shall be no bar to such action. of husband. Certain recover versioners. &c. SEC. 5. All recoveries had by agreement of parties, or by fraud, ies void as to re- against any tenant for life, in dower or by the curtesy, of any lands, tenements or hereditaments, shall be void as against all persons to whom any reversion or remainder of such lands shall appertain, and as against their heirs, unless the appearance of the person having such reversion or remainder shall have been duly entered in the court where such recovery shall be had. Feigned recoveries. Rights of lessees for years. Rights of parties recovering. Joint and several &c. SEC. 6. No execution shall be avoided by means of any feigned recovery, but all persons entitled to have execution of the lands, tenements or hereditaments, shall have the like means to avoid and falsify the same recoveries, as a tenant of the freehold, who was neither party nor privy to such recovery, has by the course of the common law. SEC. 7. A lessee for years may falsify for his term only, recoveries, in the same manner as a tenant of the freehold, who was neither party nor privy to the recovery, may do by the course of the common law; and such lessees, and their personal representatives and assigns, notwithstanding any recoveries that may be so falsified, shall hold their terms according to their demises, as if such recovery had not been had. SEC. 8. After any recovery had, the recoverers, their heirs and assigns, shall have the like remedies against any lessees for years, their representatives and assigns, for any rents or services reserved, coming due after such recoveries, and also like actions for waste done after such recoveries, as the lessors might have had, if such recoveries had not been made. SEC. 9. When any person shall die, leaving heirs either in the same actions by heirs, or in different degrees; and where several persons shall be, in any other way, entitled to real estate as tenants in common, or as joint tenants, they may bring a joint action for the recovery thereof, or may bring several actions for their respective shares or interest s. |