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lien or incumbrance upon property, real or personal, the court has power, by its judgment, to direct a sale of the property, or any part of it; the application of the proceeds to the payment of the amount due on the mortgage, lien, or incumbrance with costs; and execution, for the balance, against any party liable therefor, as principal, surety, or otherwise.

§ 904. Real property adjudged to be sold, must be sold in the county where it lies, by the sheriff of the county, or by a referee, appointed by the court for that purpose, and thereupon the sheriff or referee must execute a conveyance to the purchaser, which conveyance passes the title of the parties to the action. And upon the sale of property, real or personal, pursuant to a judgment, the court may enforce the delivery of possession thereof to the purchaser.

§ 905. When a debt is secured by mortgage of real or personal property, or a lien or incumbrance thereon, separate actions respecting the debt and the security cannot be allowed, but the creditor must include in one action all his claims upon both.

To prevent multiplicity of actions.

§ 906. If there be surplus money, remaining after payment of the amount mentioned in section 903, the court may cause the sane to be paid to the person entitled to it, and in the mean time, may direct it to be deposited in court.

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§ 907. If the debt, for which the mortgage, lien or incumbrance is held, be not all due, so soon as sufficient of the property has been sold to pay the amount due, with costs the sale must cease; and afterwards as often as more becomes due, for principal or interest, the court may, on motion, order more to be sold. But if the property cannot be sold in portions, without injury to the parties, the whole may be ordered to be sold in the first instance, and the entire debt and costs be paid, there being a rebate of interest, where such rebate is proper.

CHAPTER III.

ACTIONS FOR NUISANCE, WASTE, TRESPASS ON INDIAN LANDS, AND WILFUL TRESPASS ON OTHER REAL PROPERTY.

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§ 908. Anything, which is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, is a nuisance and the subject of an action. Such action may be brought by any person whose property is injuriously affected, or whose personal enjoyment is lessened by the nuisance ;

and by the judgment, the nuisance may be enjoined or abated, as well as damages recovered.

§ 909. If a guardian, tenant by the curtesy, in dower, for life or years, joint tenant or tenant in common of real property, commit waste thereon, any person aggrieved by the waste, may bring an action against him therefor, in which action, there may be judgment for treble damages, forfeiture of the estate of the party of fending, and eviction from the property.

§ 910. Judgment of forfeiture and eviction can only be given, in favor of the person entitled to the reversion, against the tenant in possession, when the injury to the estate in reversion is adjudged in the action, to be equal to the value of the tenant's estate or unexpired term, or to have been done in malice.

The injuries known at common law by the expressive terms of waste and nuisance, have been heretofore remediable only by special writs and a peculiar form of proceeding, or by suit in chancery. The injuries themselves are not defined in the revised statutes, but are left to be gleaned from the reports of common law cases, and elementary writers, while the method of proceeding to obtain redress is defined at some length. The system of civil action sin the code is perfectly well adapted to these cases, and it only requires a definition of them sufficiently comprehensive to prevent the loss of a remedy, and to declare them within the cases for which an ordinary action may be brought.

This the commissioners believe they have accomplished by these provisions. The necessity is dispensed with for the special writs and peculiar proceedings for which those parts of the re ised statutes were enacted.

§ 911. Every person who cuts down, or carries off, any wood or underwood, tree or timber, or girdles or otherwise injures any tree timber or shrub on the land of another person, or on the street or highway, in front of any person's house, village or city lot, or cultivated grounds, or on the commons, or public grounds, of any city or town, or on the street or highway, in front thereof, without lawful authority, is liable to the owner of such land, or to such city or town, for treble the amount of damages, which may be assessed therefor, in a civil action, in any court having jurisdiction, except as provided in the next section.

The cases to which a penalty is attached for wilful trespass, extended so as to include ornamental trees in the streets.

§ 912. If, upon the trial of such action, it appear, that the trespass was casual or involuntary, or that the defendant had probable cause to believe, that the land, on which the trespass was committed, was his own, or that of the person in whose service, or by whose direction, the act was done, judgment must be given for only the single damages assessed in the action.

§ 913. Nothing in the last two sections authorises the recovery of more than the just value of the timber, taken from uncultivated wood land, for the repair of a public highway or bridge upon the land or adjoining it.

§ 914. If a person he put out of real property in a forcible manner, without lawful authority,

or, being so put out, be afterwards kept out by force, recover damages therefor, judgment may be entered for three times the amount at which the actual damages are assessed.

§ 915. In case of forcible entry or forcible detention, if a person claiming in good faith, under color of title, to be rightfully in possession, so put out or kept out, recover damages therefor, judgment may be entered in his favor, for three times the amount, at which the actual damages are assessed.

§ 916. For trespass, by any person other than an Indian, on lands possessed by Indians, an action may be brought in the name of the people of this state.

§ 917. Such action must be prosecuted by the district attorney of the county where the lands are situated, or by an attorney to be designated for that purpose, by the county judge.

§ 918. The damages recovered in such action, after defraying the expenses of the prosecution, must be distributed among the Indians occupying such lands, according to their respective interests therein, to be determined by the county judge, on summary application before him.

§ 919. Before such action can be commenced, security for costs must be given, satisfactory to the county judge, or to the supervisor of the town where the lands are situated, by an undertaking in writing to pay

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