a summons shall issue thereon against all persons made parties as is required upon filing bills in chancery. SEC. 5. For the purpose of bringing all parties in interest before the court, the court shall have power to permit amendments to any part of the pleadings, and to issue process, make all orders requiring parties to appear, and requiring notice to be given by publication in newspapers, that are or may be authorized in proceedings in chancery; and the court shall have the same power and jurisdiction over the parties and subject that are or may be conferred upon courts in chancery in respect to proceedings before that court. SEC. 6. Suits instituted under the provisions of this chapter, shall be placed upon the common law docket, and shall stand for trial at the term of the court to which the summons is made returnable. The summons shall be served by the sheriff as other process; but if not served ten days before the return day thereof, the cause shall be continued, unless the parties agree to a trial at that term of the court. SEC. 7. Defendants, in proceedings under the provisions of this chapter, shall answer the bill or petition under oath, and the plaintiff shall except or reply to the answer as though the proceeding was in chancery; the answer shall be regarded as the plea of the defendant, and by the replication thereto, an issue or issues shall be formed, which shall be tried by the court or by a jury under the direction of the court, as the court may direct or the parties agree. SEC. 8. Every defendant served with process ten days before the return day thereof, shall answer the bill or petition on or before the day on which the cause shall be set for trial on the docket, and the issue or issues in the cause shall be made up under the direction of the court, and oral testimony shall be received as in cases at law. SEC. 9. Notice given to parties by publication in newspapers, under the direction of the court, shall be equivalent to personal service of such notice. SEC. 10. In proceedings under this chapter, all persons interested in the subject matter of the suit, or in the premises intended to be sold, may, on application to the court wherein the suit is pending, become parties at any time before final judgment. SEC. 11. Upon questions arising between different creditors, no preference shall be given to him whose contract was first made. SEC. 12. Upon the trial of causes under the provisions of this chapter, the court shall ascertain the amount due each creditor, and shall direct the application of the proceeds of sales to be made to each in proportion to their several amounts. SEC. 13. When the owner of the land shall have failed to perform his part of the contract, and by reason thereof the other party shall, without his own default, have been prevented from performing his part, he shall be entitled to a reasonable compensation for as much thereof, as he has performed in proportion to the price stipulated for the whole, and the court shall adjust his claim accordingly. SEC. 14. If any part of the premises can be separated from the residue, and sold without damage to the whole, and if the value thereof should be sufficient to satisfy all the claims proved in the cause, the court may order a sale of that part. SEC. 15. Parties entitled to liens under the provisions of this chapter, whose claims are not due or payable at the time of the commencement of suit by any other party, shall be permitted to become parties to the suit, and their claims shall be allowed, subject to a reduction of interest from the date of judgment to the time such claim is due or payable. SEC. 16. In cases under the provisions of this chapter, where there are several claimants, the issue of law and fact, or either, may the tried separately, and in no case shall the want of preparation for trial to one claim, delay the trial in respect to others; but trials shall be had upon issues between such parties as are prepared, without reference to issues between other parties; and when one creditor shall have obtained a verdict or judgment for the amount due, the court may order a sale of the premises on which the lien operates, or a part thereof, so as to satisfy the judgment: Provided, That the court may, for good causes shown, delay making any order of sale until the rights of all parties in interest shall be ascertained and settled by the court. SEC. 17. If the person who procures work to be done, or materials furnished, has an estate for life only, or any other estate less than a fee simple in the land or lot on which the work is done, or materials furnished, or if such land or lot, at the time of making the contract, is mortgaged, or under any other incumbrance, the person who procures the work or materials, shall nevertheless be considered as the owner within the meaning of this chapter, to the extent of his right and interest in the premises; and the lien herein provided for, shall bind his whole estate and interest therein in like manner as a mortgage would have done; and the creditor may cause the right of redemption, or whatever other right or estate such owner had in the land at the time of making the contract, to be sold, and the proceeds of sale applied according to the provisions of this chapter. SEC. 18. Suits may be instituted under the provisions of this chapter in favor of administrators or executors, and may be maintained against the representatives in interest of those against whom the cause of action accrued; and in suits instituted under the provisions of this chapter, the representatives of any party who may die pending the suit, shall be made parties as though it were a suit in chancery. SEC. 19. Upon proceedings under the provisions of this chapter, parties claiming may contest each other's rights as well with respect to amount due, as with respect to their right to the benefit of the lien hereby created; and upon all questions made by parties, the court shall require issues of law or fact to be formed, so as to bring about a speedy decision thereof. SEC. 20. No incumbrance upon land created before or after the making of a contract under the provisions of this chapter, shall operate upon the building erected or materials furnished, until the lien in favor of the person doing the work or furnishing the materials shall have been satisfied; and upon questions arising between previous incumbrances and creditors, under the provisions of this chapter, the previous incumbrance shall be preferred to the extent of the value of the land at the time of making the contract, and the court shall ascertain by jury or otherwise, ast the case may require, what proportion of the proceeds of any sale shall be paid to the several parties in interest. SEC. 21. Parties in interest, within the meaning of this chapter, shall include all persons who may have any legal or equitable claim to lands or lots upon which a lien may be attempted to be enforced under the provisions of this chapter. SEC. 22. Creditors who file bills or petitions under the provisions of this chapter, may contest the validity of incumbrances, as well in regard to amount as to their justice; and any incumbrance, whether by mortgage, judgment or otherwise, charged and shown to be fraudulent in respect to such creditor, or in respect to creditors generally, may be set aside by the court, and the premises made subject to the claim of the creditor freed and discharged from such fraudulent incumbrance. SEC. 23. In proceedings under the provisions of this chapter, the courts are vested with all the powers of courts of chancery, and shall be governed by the rules of proceeding and decision in these courts, so far as that power may be necessary to carry into full and complete effect the provisions hereof, and so far as those rules of proceeding and decision are applicable to cases and questions presented for adjudication and decision. SEC. 24. No creditor shall be allowed to enforce the lien created under the provisions of this chapter, as against or to the prejudice of any other creditor or any incumbrance, unless suit be instituted to enforce such lien, within six months after the last payment, for labor or materials, shall have become due and payable. SEC. 25. Nothing contained in this chapter, shall be construed to prevent any creditor from maintaining an action at law upon his contract, in like manner as if he had no lien for the security of his debt. SEC. 26. If, upon making sale of any premises under this chapter, the proceeds of such shall not be sufficient to pay the claims of all parties, according to their rights, the judgment shall be credited by the amount of such sale, and execution may issue in favor of any creditor, whose claim is not satisfied, for the balance due, as upon a judgment in actions of debt or assumpsit; and in case of excess of sales over the amount of judgment, such excess shall be paid to the owner of the land, or to the person who may be entitled to the same, under the direction of the court. SEC. 27. The costs of proceeding under the provisions of this chapter, as between creditors claiming liens and the person against whom the lien is intended to be enforced, shall abide the event of the suit; and the costs, as between creditors aforesaid, in contests relative to each other's claims, shall be subject to the order of the court, and the same rule shall prevail in respect to costs growing out of proceedings against and between incumbrancers. APPROVED: March 3, 1845. CHAPTER LXVI. LIMITATIONS. SECTION 1. What actions limited to five years. 4. What actions limited to sixteen years; provis- 5. Judgments in courts of record, may be revived by scire facias within twenty years. 6. Persons having right of entry, to enter within twenty years. 7. Real, possessory, mixed action, &c., to be brought in twenty years. 8. What actions relating to real estate, must be SECTION brought in seven years; provisions in such cases. 9. Possession, what constitutes. 10. Right of heirs, &c., secured. 11. Persons having certain rights respecting real es tate, to make entry within seven years. 12. In case of appeal, writ of error, non-suit, &c., how time to be computed. 13. If defendant be absent from State, time, how to run. 14. If Person having right of entry, be a minor, insane, &c., how time to run. SECTION 1. All actions of trespass quare clausum fregit, all actions of trespass, detinue, trover and replevin, for taking away goods and chattels, all actions for the arrearages of rent, due on a parol demise, and all actions of account, and upon case, except actions for slander, and except also, actions for malicious prosecution, and such actions as concern the trade of merchandize, between merchant and merchant, their factors or agents, shall be commenced within five years next after the cause of such actions shall have accrued, and not after. SEC. 2. All actions of trespass for assault, battery, wounding and imprisonment, or any of them, shall be commenced within two years next after the cause of such actions shall have accrued, and not after. SEC. 3. Every action upon the case for words, shall be commenced within one year next after the words spoken, and not after; and every action for malicious prosecution shall be commenced within two years next after the cause of action shall have accrued, and not after. SEC. 4. Every action of debt or covenant, for rent or arrearages of rent, founded upon any lease under seal, and every action of debt or covenant, founded upon any single or penal bill, promissory note, or writing obligatory, for the direct payment of money, or the delivery of property, or the performance of covenants, or upon any award under the hands and seals of arbitrators, for the payment of money only, shall be commenced within sixteen years after the cause of such action shall have accrued, and not after; but if any payment shall have been made on any such lease, single or penal bill, promissory note, writing obligatory or award, within or after the said period of sixteen years, then an action instituted on such lease, single or penal bill, promissory note, writing obligatory or award, within sixteen years after such payment, shall be good and effectual in law, and not after. SEC. 5. Judgment in any court of record in this State, may be revived by scire facias, or an action of debt may be brought thereon, within twenty years next after the date of such judgment, and not after. SEC. 6. No person who now hath or hereafter may have any right of entry into any lands, tenements or hereditaments, shall make an entry therein, but within twenty years next after such right shall have accrued, and such person shall be barred from any entry afterwards. SEC. 7. Every real, possessory, ancestral or mixed action, or writ of right, brought for the recovery of any lands, tenements or hereditaments, shall be brought within twenty years next after the right or title thereto, or cause of such action accrued, and not after. SEC. 8. Every real, possessory, ancestral or mixed action, or writ of right, brought for the recovery of any lands, tenements or hereditaments of which any person may be possessed by actual residence thereon, having a connected title in law or equity, deducible of record, from this State or the United States, or from any public officer or other person authorized by the laws of this State, to sell such land for the non-payment of taxes, or from any sheriff, marshal or other person authorized to sell such land on execution, or under any order, judgment or decree of any court of record, shall be brought within seven years next after possession being taken as aforesaid; but when the possessor shall acquire such title after taking such possession, the limitation shall begin to run from the time of acquiring title. SEC. 9. Possession, as described in the preceding section, to bar the rights, actions and suits aforesaid, shall have been continued in manner aforesaid, for the term of seven years next preceding the time of asserting the right of entry, or the commencement of any such suit or action. SEC. 10. The heirs, devisees and assigns of the person having such possession and title, shall have the same benefit of this chapter as the person from whom the possession was derived, could have had by virtue of such possession. SEC. 11. No person, who has or may have any right of entry into any lands, tenements or hereditaments, of which any person may be possessed by actual residence thereon, having a connected title in law or equity, deducible of record, from this State or the United States, or from any public officer or other person authorized by the laws of this State to sell such lands for non-payment of taxes, or from any sheriff, marshal or other person authorized to sell such land on execution, or under any order, judgment or decree of any court of record, shall make any entry therein, except within seven years from the time of such possession being taken; but when the possessor shall acquire such title after the time of taking such possession, the limitation shall begin to run from the time of acquiring title. SEC. 12. If, in any of the said actions specified in any of the preceding sections of this chapter, judgment be given for the plaintiff, and the same be reversed by writ of error or upon appeal, or if a verdict pass for the plaintiff, and upon matter alleged in arrest of judgment, the judgment be given against the plaintiff; or if the plaintiff be non-suited, then, if the time limited for bringing such action shall have expired during the pendency of such suit, the said plaintiff, his or her heirs, executors or administrators, as the case shall require, may commence a new action within one year after such judgment reversed or given against the plaintiff, and not after. SEC. 13. If any person or persons against whom there is or shall be any cause of action, as is specified in the preceding sections of this chapter, except real or possessory actions, shall be out of this State at the time of the cause of such action accruing, or any time during which a suit might be sustained on such cause of action, then the person or persons who shall be entitled to such action, shall be at liberty to bring the same against such person or persons, after his, her or their return to this State, and the time of such person's absence shall not be accounted or taken as part of the time limited by this chapter. SEC. 14. In all the foregoing cases in which the person or persons who shall have right of entry, title or cause of action is, are or shall be, at the time of such right of entry, title or cause of action, under the age of twenty-one years, insane, or feme covert, such person or persons may make such entry or institute such action, so that the same be done within such time as is within the different sections of this chapter limited, after his or her becoming of full age, sane or feme sole. APPROVED: March 3, 1845. |