Application of to § 1477. Where real property is sold, by virtue of an execution, this article by a person specially appointed by the court, as prescribed in section 1362 or section 1388 of this act, it may be redeemed, as prescribed in this article, as if it had been sold by the sheriff, except as follows: coroner, or person specially appointed, etc. Id.; where coroner 1. Money, required to be paid, or a paper, required to be delivered, to the sheriff, in order to effect a redemption, as prescribed in this article, at any time before the last day of the fifteen months from the time of the sale, must be paid to the officer who made the sale; unless the person entitled to redeem, his agent or attorney, files with the clerk of the county, with the paper or papers required to be filed, or to be delivered to the sheriff, for the purpose of effecting the redemption, his affidavit, to the effect, that the officer is dead; or has been removed; or, where he is a coroner, that he is no longer in office; or that after diligent search, the affiant has been unable to find him within the county; in which case, the money may be paid into court, by paying it to the county treasurer, to the credit of the cause, with like effect, as where it is paid to the sheriff, after a sale by the latter. 2. The provisions of section 1455 of this act, apply to a redemp tion, upon a sale made as prescribed in this section; and the officer, who sold the property, must attend, as the sheriff is therein required to attend. If he is not present, the redemption may be effected, as prescribed in that section, for redemption in a case, where the term of office of the sheriff, who made the sale, has expired. New. § 1478. If, when the period for redemption expires, a coroner, or a person specially appointed, by the court, who has sold real property, by virtue of an execution, is dead, or has been removed, or, in the case of a coroner, if he is no longer in office, the court must, upon the application of a person entitled to a deed, appoint a person, to execute the deed accordingly. New. ARTICLE FOURTH. REMEDIES FOR FAILURE OF TITLE TO REAL PROPERTY SOLD, AND TO ENFORCE CONTRIBUTION. SEC. 1479. When evicted purchaser may recover purchase-money. 1480. Remedy of judgment creditor thereupon. 1481. Contribution between owners of real property. 1482. Id.; when part owner redeems. 1483. Order of contribution. 1484. Contribution, how enforced by means of original judgment. 1486. Entry upon the docket. evicted may re chase § 1479. The purchaser of real property, sold by virtue of an when execution, his heir, devisee, grantee, or assignee, who is evicted from purchaser the possession thereof, or against whom judgment is rendered, in an cover puraction to recover the same, may recover the purchase-money, with money. interest, from the person for whose benefit the property was sold, where the judgment was rendered, or the eviction occurred, in consequence, either: 1. Of any irregularity in the proceedings concerning the sale; or 2. Of the judgment, upon which the execution was issued, being vacated or reversed, or set aside for irregularity, or error in fact. 2 R. S. 389, § 68, remodelled; 4 Wait's Pr. 79, 80. of judg creditor § 1480. Where final judgment is rendered, against the defend- Remedy ant, in an action specified in subdivision first of the last section, the ment judgment, by virtue of which the sale was made, remains, in his thereupon. favor, valid and effectual against the judgment debtor therein, his executor, administrator, heir, or devisee, for the purpose of collecting the sum paid on the sale, with interest. He may accordingly have a further execution upon that judgment; but the execution does not affect a purchaser in good faith, or an incumbrancer by mortgage, judgment, or otherwise, whose title or whose incumbrance accrued, before the actual levy thereof. 2 R. S. 389, 390, § 69, amended by the insertion of the word "actual" in the last line. tion owners of property. § 1481. Where the real property of two or more persons is Contribuliable to satisfy a judgment, and the whole of the judgment, or more between than a due proportion thereof, has been collected, by a sale of the real real property of one or more of them, by virtue of an execution issued upon the judgment; the person so aggrieved, or his executor or administrator, may maintain an action, to compel a just and equal contribution by all the persons, whose real property ought to contribute as prescribed in the next section but one. 2 R. S. 390, § 70, amended by substituting the words "has been collected by a sale of the real property of one or more of them, by virtue of an execution issued upon the judgment," part owner § 1482. Where the heir, devisee, or grantee, of a judgment Id.; when debtor, having an absolute title to a distinct parcel of real property, redeems. sold by virtue of an execution, redeems, as prescribed in section 1458 of this act, the property sold, or any part or parts thereof separately sold, which include his property; he may, in like manner, maintain Order of contribution. Contribution, how enforced by means of original an action, to compel a just and equal contribution by those, who own the residue of the property thus redeemed. 2 R. S. 384, that part of § 47 which was omitted in framing § 1447, ante. § 1483. Where an action is brought, as prescribed in the last two sections, the real property is liable to contribution in the following order: 1. If it comprises different undivided shares or distinct parcels, which have been conveyed by the judgment debtor, they are liable in succession, commencing with the portion last conveyed. 2. If it comprises different undivided shares or distinct parcels, which have been sold by virtue of two or more executions, they are liable in succession, commencing with the portion sold under the last and youngest judgment. 3. If it comprises different undivided shares or distinct parcels, some of which have been conveyed by the judgment debtor, and some of which have been sold by virtue of one or more executions, they are respectively liable in succession, according to the order prescribed in the first and second subdivisions of this section. 2 R. S. 390, § 71, amended by substituting the introductory sentence in the place of the words "such lands and tenements shall be liable to contribution in the following order." § 1484. For the purpose of enforcing contribution, as prescribed in the last section the court, in which the action is brought, judgment. may, and in a proper case, must, permit the plaintiff to use the orig Requisites to preserve the lien. inal judgment, and to collect, by an execution issued thereupon, out of any real property subject to the lien thereof, the sum which ought to be contributed by that property. For that purpose, the lien of the original judgment, upon that real property, when preserved, as prescribed in the next section, continues, for the term prescribed in sections 1251 and 1255 of this act, to the extent of the sum, which ought to be so contributed, notwithstanding the payment made by the party seeking contribution. 2 R. S. 390, § 72, amended so as to conform it to the provisions of the existing mode of procedure, and to § 1225, ante; and by substituting the introductory words, in place of the words, "If a bill be filed in the court of chancery to compel such contribu tion, the person aggrieved shall be entitled to use the original judgment, and by virtue thereof to levy. § 1485. The lien of the original judgment inay be preserved, as prescribed in the last section, by filing, in the clerk's office of the county where the real property is situated, within twenty days after the payment, for which contribution is claimed, an affidavit, in behalf of the person aggrieved, stating the sum paid, and his claim to use the judgment for the reimbursement thereof, with a notice. requiring the clerk to make the entries specified in the next section. But the lien is not preserved, as against a grantee or mortgagee in good faith, for a valuable consideration, without notice, and before the entries are actually made. 2 R. S., 390, § 73, amended by adding the concluding phrase of the first sentence, and the entire second sen- upon the § 1486. On filing the affidavit and notice, the clerk must make, Entry upon the docket of the judgment, an entry, stating the sum paid, and docket. that the judgment is claimed to be a lien to that amount. Where it is desired to preserve the lien, upon property situated in two or more counties, a similar affidavit and notice must be filed with, and a similar entry made by, the clerk of each county. 2 R. S. 390, 391, § 74, amended to correspond to the existing statutes, relating to docketing judgments. TITLE III. Execution against the person. SEC. 1487. In what cases execution may be issued against the person. 1488. Id.; against a woman. 1489. When execution against property must be first issued. 1490. Simultaneous executions not allowed against property and person. 1491. Id.; when debtor has been taken. 1492. New execution may issue after escape. 1493. Id.; when debtor dies charged in execution. 1494. Id.; when creditor discharges debtor after thirty days. 1495. New execution not to be enforced against real property sold, etc. cases exe § 1487. Where a judgment can be enforced by execution, as In what prescribed in section 1240 of this act, an execution, against the per- cution son of the judgment debtor, may be issued thereupon, subject to issued the exception specified in the next section, in either of the following the per cases: 1. Where the plaintiff's right to arrest the defendant depends upon the nature of the action. 2. In any other case, where an order of arrest has been granted and executed in the action, and has not been vacated. Code Pro., first two sentences of § 288, remodelled, and omitting the phrase, "after the return of an execution against his property unsatisfied, in whole or in part.” Wait's Code, 533538: 4 Wait's Pr. 115-120. Upon a judgment for plaintiff in an action for a cause entitling him to an be against son. Id.; against a woman. When execution against property must be A complaint which alleges that the defendant, as assignee for the benefit of creditors of the plaintiff's debtor, had received a sum of money, of which by the terms of the assignment the plaintiff was entitled to a share, and that the defendant, although requested, has refused and neglected to pay over the same, states a cause of action for money received in a fiduciary capacity, in which the defendant might be arrested under § 179, Code Pro., and upon a judgment against him in such action, an execution against his person may properly be issued. Roberts v. Prosser, 53 N. Y. (8 Sick.) 260; reversing S. C., 4 Lans. 369; 9 Alb. L. J. 50. An execution must in all respects follow the judgment upon which it is founded, and be warranted by it. Farmers and Mechanics' Nat. Bank v. The taking of the body of a judg ment-debtor on execution is a satisfaction of the judgment, so long as the imprisonment continues. Kanig v. Steckel, 58 N. Y. (13 Sick.) 475; affirming S. C., 4 J. & Sp. 167. When it appears upon the return to a writ of habeas corpus that the prisoner is held under execution issued upon a final judgment of a competent court, it is the duty of the court to remand him. People ex rel. Hewlett v. Brennan, 61 Barb. 540. § 1488. But an execution cannot be issued against the person of a woman, unless an order of arrest has been granted and executed in the action, and has not been vacated. See Wait's Code, 535; and 4 Wait's Pr. 118, 119. § 1489. Unless the judgment debtor is actually confined, without having been admitted to the liberties of the jail, by virtue of an first issued. execution against his person, issued in another action, or of an order of arrest or a surrender by his bail, in the same action, an execution against his person cannot be issued, until an execution against his property has been returned, wholly or partly unsatisfied. If he is a resident of the State, the execution against his property must have been issued to the county where he resides. Simultaneous exe allowed property Last clause of first sentence of Code Pro., § 288, with the addition of the exception at the beginning of this section, and the second sentence. The exception is taken substantially from 2 R. S. 377, § 5. The second sentence is new. Wait's Code, 533-538; 4 Wait's Pr. 116-119. § 1490. An execution against the person of the judgment entions not debtor cannot be issued, without leave of the court, while an execuagainst tion against his property, issued in the same action, remains unreand person. turned; and an execution against his property cannot be issued, without leave of the court, while an execution against his person, issued in the same action, remains unreturned. 2 R. S. 377, § 6. An execution against the person of the judgmentdebtor can be issued only after the return unsatisfied, in whole or in part, of an execution against his property, and only to a county within the jurisdiction of the court. Noe v. Christie, 15 Abb. N. S. 346; S. C., 46 How. 496; 4 Wait's Pr. 120. |