Page images
PDF
EPUB

surplus, to be applied to the amount next to become due, the proper rebate of interest being made, If he refuse to receive the surplus, it may, by order of the judge, be paid to the person next entitled.

§ 1405. Mortgages to the people of the state, may be foreclosed as provided in this chapter.

See 1 R. S., 236, tit. 4, ch. 9, part 1, § 1.

§ 1406. The costs of summary foreclosure, pursuant to this chapter, and to be retained out of the proceeds of the sale, are as follows:

1. The printer's fees allowed by law for publishing notices;

2. The clerk's fees allowed by law for necessary searches to ascertain interests and liens subsequent to the mortgage;

3. For posting and filing notices, one dollar;

4. For service, otherwise than through the post of fice, of a copy of notice on the mortgagor and other persons, not exceeding five, one dollar each; for all over five, fifty cents each;

5. For service on each person served only through the post office, twenty-five cents;

6. For all other services, prior to the day of sale, five dollars;

7. For attending the sale, and all services to the day of application for confirmation, five dollars;

8. For attending the judge for confirmation, and all subsequent services, five dollars;

9. The clerk's fees allowed by law for recording evidence and order of confirmation;

10. Sheriff's fees upon the sale, for the first parcel sold, three dollars; for every subsequent parcel, separately sold, one dollar; for attending before the judge on the application for confirmation with money received on the sale, two dollars; and for all money actually received by him on the sale and paid over, one-half of one per cent.

The Commissioners feel some delicacy in fixing the amount of costs for legal proceedings, but under the former construction of their duty by the legislature, they nevertheless feel bound to insert them, and in doing so, they are mindful that the people have a right to expect a low rate of legal fees, while they can say to the profession, that there is no restraint on their right to make such agreement for compensation as they see fit.

CHAPTER IV.

SUMMARY PROCEEDINGS FOR OBTAINING POSSESSION OF REAL PROPERTY IN CERTAIN CASES.

SECTION 1407. Forcible entry defined and forbidden.

1408. Restoration required after forcible eviction.

1409. Landlord restored to possession, when tenant deserts.

1410. In what cases tenant may be removed.

1411. Proceeding by complaint and action or order.

1412. Manner of service by an officer.

1413. Proceeding on return of summons.

1414. Defendant may put in answer.

1415. Questions to be tried by justice or jury.

1416. Judgment of removal, when made.

1417. Warrant thereon.

1418. Trial may be adjourned.

1419. Effect of removal upon the lease.

1420. When tenant may pay rent and stay warrant.

1421. When proceeding may be discharged.

1422. When tenant may be restored.

1423. Warrant stayed twenty-four hours after judgment, and appeal

allowed.

1424. On appeal and security, warrant stayed.

1425. When tenant claims under another landlord.

1426. Time and manner of removal.

1427. Justice to keep entries in his docket.

1428. Restitution upon conviction of forcible entry.

1407. Entry upon real property can only be made, where entry is given by law, and then it must not be made forcibly; and an entry peaceably made, must not be forcibly maintained, against one who is entitled to the possession A forcible entry or detention, within the meaning of this section, is one made with weapons, an unusual number of persons, or threats of violence, or attended with any other breach of the peace.

This chapter is intended as a substitute for 2 R. S., 507517, and renders the course of proceeding in the different cases, uniform.

§ 1408. In case of a forcible entry or detention, the person dispossessed or excluded may, upon application made within one month thereafter, be placed in possession, if entitled thereto, as provided in this chap

ter.

§ 1409. If a tenant, who is in arrear for rent, desert the property, leaving the same unoccupied, the landlord may be put in possession thereof, as provided in this chapter.

§ 1410. A tenant of real property, for a term less than for life, may be removed from such property, as provided in this chapter, in the following cases:

1. Where he continues in possession of the property, or any part thereof, after the expiration of his term, without the permission of the landlord but in case of a tenancy at will or sufferance, it must be first terminated by notice, in the manner prescribed by law;

2. Where the tenant continues in possession, without such permission, after default in the payment of rent pursuant to the agreement under which the property is held, and three days notice in writing requiring payment of the rent or possession of the property, shall have been served on the tenant, in the manner prescribed by section 1412, for the service of an order;

3. Where a person continues in possession of real property, which has been sold upon execution against him, or against the person under whom he claims by [CIVIL CODE.]

38

a title subsequent to the lien on which it was sold, after a title under such sale shall have been perfected, and possession thereunder has been demanded;

4. Where a person continues in possession of real property, which has been sold upon summary foreclosure of a mortgage, executed by him, or by the person under whom he claims by a title subsequent to the mortgage, after a title under such sale shall have been perfected, and possession thereunder has been demanded.

§ 1411. A complaint must be made, and verified, as in an action, stating plainly and concisely the facts necessary to establish the rights of the plaintiff, and thereupon either,

1. A copy of the complaint must be served upon the defendant, with a notice from the plaintiff that unless the defendant previously surrender to the plaintiff possession of the premises, application will, at a specified time and place, be made to a justice of the town or justices' district where the property is situated, for a warrant of possession in favor of the plaintiff; or,

2. The complaint must be delivered to such justice, who shall make an order, requiring the defendant to surrender possession of the property to the plaintiff, or show cause before the justice, at a specified place and time, why a warrant of possession should not be issued in favor of the plaintiff.

« PreviousContinue »