Subchapter II-Mortgage Foreclosure

§ 1731. Foreclosure of mortgages on real and personal property (a) There may be but one action for the recovery of a debt, or the enforcement of a right, secured by mortgage upon real or personal property, which action shall be in accordance with the provisions of this subchapter. In the action the court may, by its judgment, direct the sale of the encumbered property (or as much thereof as may be necessary), and the application of the proceeds of the sale to the payment of the costs of court, and the expenses of the sale, and the amount due plaintiff, including, where the mortgage provides for the payment of attorney's fees, such sum for the fees as the court finds reasonable, not exceeding the amount named in the mortgage.

(b) The court may, by its judgment, or at any time after judgment, appoint a commissioner to sell the encumbered property. It shall require of him an undertaking in an amount fixed by the court, with sufficient sureties, to be approved by the court, to the effect that the commissioner will faithfully perform the duties of his office according to law. Before entering upon the discharge of his duties he shall file the undertaking, so approved, together with his oath that he will faithfully perform the duties of his office.

(c) If it appears from the marshal's return, or from the commissioner's report, that the proceeds are insufficient, and a balance still remains due, the clerk shall enter judgment for the balance against the defendant or defendants personally liable for the debt.

(d) A person holding a conveyance from or under the mortgagor of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record in the office of the registrar of property at the time of the commencement of the action, need not be made a party to the action, and the judgment therein rendered, and the proceedings therein had, are as conclusive against the party holding the unrecorded conveyance or lien as if he had been a party to the action.

(e) If the court appoints a commissioner for the sale of the property, the commissioner shall sell it in the manner provided by law for the sale of like property by the marshal upon execution; and sections 541-569 of this title apply to sales made by a commissioner, and the powers therein given and the duties therein imposed on the marshal are extended to the commissioner.

§ 1732. Disposition of surplus

If there is surplus money remaining, after payment of the amount due on the mortgage, lien, or encumbrance, with costs, the court may cause it to be paid to the person entitled to it, and in the meantime may direct it to be deposited in court.

§ 1733. Debt becoming due at different times

If the debt for which the mortgage, lien, or encumbrance is held is not all due, the sale shall cease as soon as sufficient of the property has been sold to pay the amount due, with costs; and afterwards, as often as more becomes due, for principal or interest, the court may, on motion, order more to be sold. 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 paid, with a rebate of interest where a rebate is proper.

§ 1734. Commissioner's oath, bond, report, and compensation

Before entering upon his duties, the commissioner shall take an oath to perform them faithfully, and the court shall require of him an undertaking, with sufficient sureties, to be approved by the court, in an amount to be fixed by the court, to the effect that he will faithfully perform the duties of commissioner according to law.

Within 30 days after the sale, the commissioner shall file with the clerk of the court in which the action is pending, a verified report and account of the sale, together with the proper affidavits showing that the regular and required notice of the time and place of the sale was given, and the report and account shall have the same force and effect as the marshal's return in sales under execution.

In all cases of sale made by a commisisoner, the court in which the proceedings are pending shall fix a reasonable compensation for the commissioner's service, which shall not be less than $10.

Subchapter III-Nuisance and Waste

§ 1761. Abatement of nuisance; damages

An action may be brought in the district court by a person whose property is injuriously affected, or whose personal enjoyment is lessened by a nuisance, as defined in section 5031 of Title 4, and by the judgment in the action the nuisance may be enjoined or abated as well as damages recovered therefor.

A civil action may be brought in the district court by the United States attorney in the name of the Government of the Canal Zone to abate a public nuisance, as defined by section 5032 of Title 4.

§ 1762. Actions for waste; treble damages

If a guardian, tenant for life or years, joint tenant, or tenant in common of real property, commits waste thereon, a person aggrieved by the waste may bring an action against him therefor, in which action there may be judgment for treble damages.

Subchapter IV-Forcible Entry and Detainer

§ 1801. Forcible entry defined

Every person is guilty of a forcible entry who either:

(1) by breaking open doors, windows, or other parts of a house, or by any kind of violence or circumstance of terror enters upon or into any real property; or

(2) after entering peaceably upon real property, turns out by force, threats, or menacing conduct, the party in possession.

Every person is guilty of a forcible detainer who either:

(1) by force, or by menaces and threats of violence, unlawfully holds and keeps the possession of any real property, whether it was acquired peaceably or otherwise; or

(2) in the nighttime, or during the absence of the occupant of any lands, unlawfully enters upon real property, and who, after demand made for the surrender thereof, for the period of five days, refuses to surrender them to the former occupant.

The occupant of real property, within the meaning of this subchapter, is one who, within five days preceding the unlawful entry, was in the peaceable and undisturbed possession of the lands.

§ 1803. Unlawful detainer defined

A tenant of real property, for a term less than life, is guilty of unlawful detainer:

(1) When he continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to him, without the permission of his landlord, or the successor in estate of his landlord, if any. In the case of a tenancy at will, however created, the tenancy is terminated by the landlord's giving notice in writing to the tenant, in the manner prescribed by section 1804 of this title, to remove from the premises within a period

of not less than 30 days to be specified in the notice, and a tenant continuing in possession after the expiration of the notice period is guilty of unlawful detainer.

(2) When he continues in possession, in person or by subtenant. without the permission of his landlord, or the successor in estate of his landlord, if any, after default in the payment of rent, pursuant to the lease or agreement under which the property is held, and three days' written notice, requiring its payment, stating the amount which is due, or possession of the property, has been served upon him and if there is a subtenant in actual occupation of the premises, also upon the subtenant. The notice may be served at any time within one year after the rent becomes due.

(3) When he continues in possession, in person or by subtenant, after a neglect or failure to perform other conditions or covenants of the lease or agreement under which the property is held, including any covenant not to assign or sublet, than the one for the payment of rent, and three days' written notice, requiring the performance of the conditions or covenants, or the possession of the property, has been served upon him, and if there is a subtenant in actual occupation of the premises, also, upon the subtenant. Within three days after the service of the notice, the tenant, or any subtenant in actual occupation of the premises, or any mortgagee of the term, or other person interested in its continuance, may perform the conditions or covenants of the lease or pay the stipulated rent, as the case may be, and thereby save the lease from forfeiture. If the conditions and covenants of the lease, violated by the lessee, cannot afterward be performed, then no notice, as last prescribed herein, need be given to the lessee or his subtenant, demanding the performance of the violated conditions or covenants of the lease.

A tenant may take proceedings, similar to those prescribed in this subchapter, to obtain possession of the premises let to a subtenant, in case of his unlawful detention of the premises underlet to him.

(4) A tenant or subtenant assigning or subletting or committing waste upon the demised premises, contrary to the conditions or covenants of his lease, thereby terminates the lease, and the landlord, or his successor in estate, upon service of three days' notice to quit upon the person or persons in possession, is entitled to restitution of possession of the demised premises under the provisions of this subchapter.

§ 1804. Service of notice:

The notices required by section 1803 of this title may be served, either:

(1) by delivering a copy to the tenant personally; or

(2) if he is absent from his place of residence, and from his usual place of business, by leaving a copy with some person of suitable age and discretion at either place, and sending a copy through the mail addressed to the tenant at his place of residence;

or

(3) if the place of residence and business can not be ascertained, or a person of suitable age or discretion can not be found there, then by affixing a copy in a conspicuous place on the property, and also delivering a copy to a person there residing, if such a person can be found; and also sending a copy through the mail addressed to the tenant at the place where the property is situated.

Service upon a subtenant may be made in the same manner.

§ 1805. Parties defendant

(a) A person other than the tenant of the premises and subtenant, if there is one, in the actual occupation of the premises when the complaint is filed, need not be made a party defendant in the proceeding, and a proceeding shall not be dismissed for the nonjoinder of any person who might have been made a party defendant, but when it appears that any party served with process, or appearing in the proceeding, is guilty of the offense charged, judgment shall be rendered against him. If a defendant has become a subtenant of the premises in controversy after the service of the notice provided for by paragraph (2) of section 1803 of this title upon the tenant of the premises, the fact that the notice was not served on each subtenant does not constitute a defense to the action.

(b) If a married woman is a tenant or subtenant, her coverture does not constitute a defense; but if her husband is not joined, or unless she is doing business as a sole trader, an execution issued upon a personal judgment against her may only be enforced against property on the premises at the commencement of the action.

(c) All persons who enter the premises under the tenant, after the commencement of the suit, are bound by the judgment, as if they had been made parties to the action.

§ 1806. Parties generally

Except as provided in section 1805 of this title, the provisions of section 721 of this title, relating to parties to civil actions in the magistrates' courts, apply to proceedings under this subchapter.

§ 1807. Complaint; issuance of summons

The plaintiff in his complaint, which shall be verified, shall set forth the facts on which he seeks to recover, and describe the premises with reasonable certainty, and may set forth therein any circumstances of fraud, force, or violence, which may have accompanied the alleged forcible entry or forcible or unlawful detainer, and claim damages therefor. If the unlawful detainer charged is after default in the payment of rent, the complaint shall state the amount of the rent.

Upon the filing of the complaint, a summons shall be issued thereon. § 1808. Form and service of summons

The summons shall require the defendant to appear and answer within three days after the service of the summons upon him, and shall notify him that if he fails to so appear and answer, the plaintiff will apply to the court for the relief demanded in the complaint. In all other respects the summons, or any alias summons in the proceedings, shall be issued and served and returned in the same manner as summons in a civil action.

§ 1809. Arrest of defendant

If the complaint presented establishes, to the satisfaction of the magistrate, fraud, force, or violence, in the entry or detainer, and that the possession held is unlawful, he may make an order for the arrest of the defendant.

§ 1810. Default judgment

If, at the time appointed, the defendant does not appear and defend, the court shall enter his default and render judgment in favor of the plaintiff as prayed for in the complaint.

§ 1811. Appearance and answer of defendant

On or before the day fixed for his appearance, the defendant may appear and answer or move to dismiss the complaint.

§ 1812. Trial; showing required

(a) On the trial of a proceeding for a forcible entry or forcible detainer, the plaintiff shall be required to show, in addition to the forcible entry or forcible detainer complained of, only that he was peaceably in the actual possession at the time of the forcible entry, or was entitled to the possession at the time of the forcible detainer.

(b) The defendant may show in his defense that he or his ancestors, or those whose interest in the premises he claims, have been in the quiet possession thereof for the space of one whole year together next before the commencement of the proceedings, and that his interest therein is not then ended or determined; and such a showing is a bar to the proceedings.

§ 1813. Amendment to conform to evidence; continuance

When, upon the trial of a proceeding under this subchapter, it appears from the evidence that the defendant has been guilty of either a forcible entry or a forcible or unlawful detainer, and other than the offense charged in the complaint, the magistrate shall order that the complaint be forthwith amended to conform to the proofs; and the amendment shall be made without any imposition of terms. A continuance may not be permitted upon account of the amendment unless the defendant, by affidavit filed, shows to the satisfaction of the court good cause therefor.

§ 1814. Judgment

If upon the trial the finding of the court is in favor of the plaintiff and against the defendant, judgment shall be entered for the restitution of the premises; and if the proceedings are for an unlawful detainer after neglect or failure to perform the conditions or covenants of the lease or agreement under which the property is held, or after default in the payment of rent, the judgment shall also declare the forfeiture of the lease or agreement.

(b) The court shall also assess the damages occasioned to the plaintiff by any forcible entry, or by any forcible or unlawful detainer, alleged in the complaint and proved on the trial, and find the amount of any rent due, if the alleged unlawful detainer is after default in the payment of rent. Judgment against the defendant guilty of the forcible entry, or forcible or unlawful detainer, may be entered in the discretion of the court either for the amount of the damages and rent found due, or for three times the amount so found.

(c) When the proceeding is for an unlawful detainer after default in the payment of rent, and the lease or agreement under which the rent is payable has not by its terms expired, execution upon the judgment may not be issued until the expiration of five days after the entry of the judgment, within which time the tenant, or a subtenant, or a mortgagee of the term, or another party interested in its continuance, may pay into court, for the landlord, the amount found due as rent, with interest thereon, and the amount of the damages found by the court for the unlawful detainer, and the costs of the proceedings, and thereupon the judgment shall be satisfied and the tenant be restored to his estate.

(d) If payment as provided in this section is not made within five days, the judgment may be enforced for its full amount, and for the possession of the premises. In all other cases the judgment may be enforced immediately.

§ 1815. Relief against forfeiture of lease

The court may relieve a tenant against a forfeiture of a lease, and restore him to his former estate, in case of hardship, where application for such relief is made within 30 days after the forfeiture is declared by the judgment of the court, as provided in section 1814 of this