surplus to the judgment debtor or his legal representatives, on de- TITLE XVIII. mand. CHAPTER 79. SEC. 37. All rights of redeeming mortgaged real estate may be Equity of resold on execution in the manner herein prescribed for the sale of other demption of mortgaged prem real estate on execution, excepting in the case hereinafter specified; ises may be sold, and such equity of redemption may be redeemed, and the rights of and redeemed. any purchaser may be acquired, in the same manner, and upon the same terms and conditions as other real estate sold on execution. purchaser, to be SEC. 38. If the purchaser of any such equity of redemption, or Payment on any creditor having acquired the rights of such purchaser, shall pay mortgage by the debt due on the mortgage, or any part thereof, the amount so paid on redeempaid on the mortgage shall be paid, with interest, to such purchaser ing, &c. or creditor, in redeeming the premises or purchasing the rights of such purchaser or creditor, as the case may be, according to the provisions of this chapter. to be added to SEC. 39. The lawful fees and charges of the sale upon any execu- Fees and charges tion in the manner prescribed in this chapter, shall, in all cases, be amount due on added to the amount due on the execution, and be considered as a execution. part thereof for all the purposes mentioned in this chapter. to be sold. SEC. 40. When a judgment shall be recovered for a debt secured When right of by mortgage of real estate, or for any part of such debt, it shall not redemption not be lawful for the sheriff or other officer to sell the equity of redemption of the mortgagor, his heirs or assigns in such estate, by virtue of any execution upon such judgment. mises to be en SEC. 41. Whenever any execution against the property of the de- Description of fendant shall be issued upon such judgment as is mentioned in the mortgaged prepreceding section, the plaintiff or his attorney shall indorse on such dorsed on execu execution, a brief description of the premises mortgaged, with a direction to the officer not to levy such execution upon the said premises or any part thereof. tion with direc tion. SEC. 42. If such execution shall not be collected of the other when execution property of the defendant, the officer shall return the same unsatisfied, to be returned in whole or in part, as the case may require. unsatisfied. be recorded. SEC. 43. Before any assignee, or his personal representative, shall Assignments to be entitled to a deed under the provisions of this chapter, every assignment under which he claims title, shall be executed and acknowledged or proved, in the same manner that deeds are required to be executed and acknowledged or proved, to entitle the same to be recorded, and such assignee shall cause the same to be recorded in the office of the register of deeds, in the county where the real estate so sold is situated. 1841, p. 134, §3. SEC. 44. If the purchaser of any real estate, sold by virtue of an when purchaser execution, his heirs and (or) assigns, shall be evicted from the posses- may recover. sion of such real estate, or if in [an] action for the recovery thereof, judgment shall be rendered against him or them, in consequence, 1. Of any irregularity in the proceedings concerning such sale: or, 2. Of the judgment upon which such execution issued being vaca- 5 Cowen, 38. ted or reversed; such purchaser, his heirs or assigns, may recover of the party for whose benefit such real estate was sold, the amount paid on the purchase thereof, with interest. tiff. SEC. 45. The party for whose benefit such real estate was sold, and Remedy of plain. his personal representatives, upon such recovery being had against him in consequence of any irregularity in the proceedings concerning the sale, may have further execution upon the judgment, by virtue of TITLE XVIII. which such sale was made, to levy the amount paid on such sale, with interest. CHAPTER 79. Judgment,how far SEC. 46. Such judgment shall be deemed valid and effectual for the pose of remedy. purpose specified in the preceding section, against the defendant therein, his personal representatives, heirs and devisees, but not against any purchaser in good faith, or any incumbrancer by mortgage, judgment or otherwise, whose title or incumbrance shall have accrued before the levy of such further execution. Cases of contribution. SEC. 47. When lands and tenements, in the hands of several persons, shall be liable to satisfy any judgment, and the whole of such judgment, or more than a due proportion thereof, shall be levied upon the lands of one or more of such persons, the persons so aggrieved, or their personal representatives, may compel a just and equal contribu535, Certion by all the persons whose lands and tenements ought to contribute to the satisfaction of such judgment. 235, 1 page. 228. Order of contribution. How contribution enforced in chancery. Lien of original judgment. Entry to be made in margin of copy. Action of as. sumpsit to reco SEC. 48. Such lands and tenements shall be liable to contribution in the following order: 1. If they were conveyed by the defendant in the execution, they shall be liable in succession, commencing with the lands last conveyed: 2. If they were sold under execution against the defendant, they shall also be liable in succession, commencing with the lands sold under the last and youngest judgment: 3. If there be lands so liable, which were conveyed by the defendant in the execution, and also lands which have been sold under execution against such defendant, they shall respectively be liable in succession, according to the order hereinbefore prescribed. SEC. 49. If a bill be filed in chancery to enforce such contribution, the person aggrieved shall be entitled to use the original judgment, and by virtue thereof, to pay the amount which ought to be contributed by the lands and tenements subject to such judgment; and for that purpose, such judgment shall remain a lien and charge upon such lands and tenements, for the term of five years after a certified copy thereof shall have been filed and entered in the office of the register of deeds in the county where the lands are situated, to the extent of the sum which ought to be so contributed, notwithstanding such sum or any part thereof, may have been paid by the party seeking such contribution. SEC. 50. But such original judgment shall not remain a lien upon any lands, nor shall they be subject to an execution as herein provided, unless the person aggrieved, shall file an affidavit with the regis ter of deeds in whose office a certified copy of such judgment shall have been filed and entered, stating the sum paid, and his claim to use such judgment for the reimbursement thereof, or of some portion of the same. SEC. 51. On the filing of such affidavit, the register of deeds shall make an entry in the margin of the entry of the certified copy of such judgment, stating the sum so paid, and that such judgment is claimed to be a lien to that amount. SEC. 52. Any person upon whose lands and tenements, more than ver contribution. a due proportion of any judgment may have been levied, may in his election, have an action of assumpsit against any person whose lands ought to contribute as hereinbefore provided, to recover the amount which such person ought to contribute on account of such lands. TITLE XIX. OF FRAUDULENT CONVEYANCES AND CONTRACTS, RELATIVE TO REAL Chapter 80. Of Fraudulent Conveyances and Contracts relative to Lands. Chapter 81. Of Fraudulent Conveyances and Contracts relative to Chapter 82. General Provisions relating to Fraudulent Conveyances TITLE XIX. CHAPTER 80. CHAPTER 80. OF FRAUDULENT CONVEYANCES AND CONTRACTS RELATIVE TO LANDS. SECTION 1. Every conveyance of any estate or interest in lands, or convevance with the rents and profits of lands, and every charge upon lands or upon intent to defraud. the rents and profits thereof, made or created with intent to defraud prior or subsequent purchasers for a valuable consideration, of the same lands, rents or profits, as against such purchasers, shall be void. SEC. 2. No such conveyance or charge shall be deemed fraudulent, Qualification of in favor of a subsequent purchaser, who shall have actual or legal last section. notice of the prior conveyance or charge, at the time of his purchase, unless it shall appear that the grantee in such prior conveyance, or person to be benefitted by such charge, was privy to the fraud intended. power of reo SEC. 3. Every conveyance or charge of, or upon, any estate or in- Conveyance with terest in lands, containing any provision for revocation, determination cation at will of or alteration of such estate or interest, or any part thereof, at the will grantor, void. of the grantor, shall be void as against subsequent purchasers from such grantor for a valuable consideration of any estate or interest so liable to be revoked or determined, although the same he not expressly revoked, determined or altered by such grantor, by virtue of the power reserved or expressed in such prior conveyance or charge. SEC. 4. When a power to revoke a conveyance of any lands, or the Conveyance by rents and profits thereof, and to re-convey the same, shall be given to any person, other than the grantor in such conveyance, and such person shall thereafter convey the same lands, rents or profits, to a purchaser for a valuable consideration, such subsequent conveyance shall be valid, in the same manner, and to the same extent, as if the power of revocation were recited therein, and the intent to revoke the former conveyance expressly declared. one authorized grants. SEC. 5. If a conveyance to a purchaser, under either of the two last m. preceding sections, shall be made before the person making the same shall be entitled to execute his power of revocation, it shall neverthe CHAPTER 81. TITLE XIX. less be valid, from the time the power of revocation shall actually vest in such person, in the same manner and to the same extent, as if then made. Requisites to convey certain SEC. 6. No estate or interest in lands, other than leases for a term interests in lands. not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by some person thereunto by him lawfully authorized by writing. 6 Wend., 461. 10 do. 436. Qualification of last section. Contracts to lease or sell SEC. 7. The preceding section shall not be construed to affect in any manner, the power of a testator in the disposion of his real estate, by a last will and testament; nor to prevent any trust from arising, or being extinguished, by implication or operation of law. SEC. 8. Every contract for the leasing for a longer period than one lands, when void year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made, or by some person thereunto by him lawfully authorized by writing. SEC. 9. The consideration of any contract or agreement, required need not be set by the provisions of this chapter to be in writing, need not be set forth in the contract or agreement, or in the note or memorandum thereof, but may be proved by any other legal evidence. Consideration forth. Powers of court of chancery not abridged. SEC. 10. Nothing in this chapter contained, shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements, in cases of part performance of such agreements. CHAPTER 81. Certain transfers perty void. OF FRAUDULENT CONVEYANCES AND CONTRACTS, RELATIVE TO GOODS SECTION 1. All deeds of gift, all conveyances, and all transfers or of personal pro- assignments, verbal or written, of goods, chattels or things in action, made in trust for the use of the person making the same, shall be void, as against the creditors, existing or subsequent, of such person. SEC. 2. In the following cases specified in this section, every agreeto be void, unless ment, contract and promise shall be void, unless such agreement, contract or promise, or some note or memorandum thereof be in wri ting, and signed by the party to be charged therewith, or by some person by him thereunto lawfully authorized, that is to say: Certain contracts in writing. 10 Wend., 426. 4 do., 657. 9 do. 263. 10 do. 461. 1. Every agreement that, by its terms, is not to be performed in one year from the making thereof: 2. Every special promise to answer for the debt, default, or misdo. ings of another person: 3. Every agreement, promise or undertaking, made upon consider ation of marriage, except mutual promises to marry: 4. Every special promise made by an executor or administrator, to answer damages out of his own estate. TITLE XIX. CHAPTER 81. SEC. 3. No contract for the sale of any goods, wares or merchan- Contract for sale dize, for the price of fifty dollars or more, shall be valid, unless the of goods exceed. ing fifty dollars. purchaser shall accept and receive part of the goods sold, or shall give something in earnest, to bind the bargain or in part payment, or 3 Wend., 112. unless some note or memorandum in writing of the bargain be made, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized. SEC. 4. Whenever any goods shall be sold at auction, and the auc- Sales at auction. tioneer shall, at the time of sale, enter in a sale-book, a memorandum specifying the nature and price of the property sold, the terms of the sale, the name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a memorandum of the contract of sale, within the meaning of the last section. ability, &c., of another. SEC. 5. No action shall be brought to charge any person, upon or Representations by reason of any favorable representation or assurance, made con- in regard to the cerning the character, conduct, credit, ability, trade or dealings of any other person, unless such representation or assurance be made in writing, and signed by the party to be charged thereby, or by some person thereunto by him lawfully authorized. Consideration need not be set 17 Mass., 122. forth, 5 Cranch, 142. 4 B. & A., 595. When sale, &c., SEC. 6. The consideration of any contract, agreement or promise required by this chapter to be in writing, need not be expressed in the written contract, agreement or promise, or in any note or memorandum thereof, but may be proved by any other legal evidence. SEC. 7. Every sale made by a vendor, of goods and chattels in his possession, or under his control, and every assignment of goods and to be presumed chattels by way of mortgage or security, or upon any condition what- fraudulent, unever, unless the same be accompanied by an immediate delivery, and change of posbe followed by an actuul and continued change of possession of the session. things sold, mortgaged or assigned, shall be presumed to be fraudulent and void, as against the creditors of the vendor, or the creditors of the person making such assignment, or subsequent purchasers in good less followed by faith, and shall be conclusive evidence of fraud, unless it shall be 12 Wend., 297. made to appear, on the part of the persons claiming under such sale or assignment, that the same was made in good faith, and without any intent to defraud such creditors or purchasers. creditors. SEC. 8. The term "creditors," as used in the preceding section, Who deemed shall be construed to include all persons, who shall be creditors of the vendor or assignor, at any time whilst such goods and chattels shall remain in his possession, or under his control. SEC. 9. Nothing contained in the two last sections, shall avoid or Two last secdefeat any contract of bottomry or respondentia, nor any transfer, as- tions qualified. signment, or hypothecation of any vessels or goods at sea or abroad, if the assignee or mortgagee shall take possession of such vessels or goods, as soon as may be after the arrival thereof, unless filed. SEC. 10. Every mortgage, or conveyance intended to operate as a Mortgage of mortgage, of goods and chattels, which shall hereafter be made, which goods, &c., void shall not be accompanied by an immediate delivery, and followed by an actual and continued change of possession of the things mortgaged, shall be absolutely void as against the creditors of the mortgagor, and as against subsequent purchasers and mortgagees in good faith, unless the mortgage, or a true copy thereof shall be filed in the office of the township clerk of the township where the mortgagor resides. |