property, unless the warrant of attachment has been vacated, or annulled. ART. 2. undertak. § 1416. Where personal property of a partnership has been released, When the upon giving an undertaking, as prescribed in the last three sections, if ing enures the execution, by virtue of which the levy was made, is set aside, or is to other judgment satisfied without a sale of the interest levied upon, the undertaking creditors. enures to the benefit of each judgment creditor of the same judgment debtor, then having an execution in the hands of the same officer, or of another officer, having authority to levy upon that interest, as if it had been given to obtain a release from a seizure, made by virtue of such an execution. est sold; § 1417. Where personal property of a partnership has been so How partreleased, the interest of the judgment debtor therein may be sold by ner's interthe officer; and the purchaser, upon the sale, acquires all that interest, rights, etc., as if he was an assignee thereof. If the purchase-money exceeds the of purchas amount of all the executions and warrants of attachment, against the property of the same judgment debtor, of which the officer has notice, and of the lawful fees and charges thereon, the officer must pay the surplus into court, for the benefit of the judgment debtor, or other person entitled thereto. by a third § 1418. If personal property, levied upon as the property of the Claim of judgment debtor, is claimed, by or in behalf of another person, as his property property, the officer may, in his discretion, empanel a jury to try the person, validity of the claim. how tried. claimant § 1419. If, by their inquisition, the jurors find that the property Proceedbelongs to the claimant, they must also determine its value. There- ings, if upon the officer may relinquish the levy, unless the judgment creditor succeeds. gives him an undertaking, with at least two sufficient sureties, to the effect, that the sureties will indemnify him, to an amount therein specined, not less than twice the value of the property, as determined by the jury, and two hundred and fifty dollars in addition thereto, against all damages, costs and expenses, in an action to be brought against him, by the claimant, his assignee, or other representative, by reason of the levy upon, detention, or sale of any of the property, by virtue of the execution. If the undertaking is given, the officer must detain the property, as belonging to the judgment debtor. not to pre § 1420. If the property is found to belong to the defendant, the find- Inquisition ing does not prejudice the right of the claimant, to bring an action to judice recover the property so levied upon, or damages by reason of the levy, claimant's detention; or sale. right. cer, indem be substi § 1421.' Where an action to recover a chattel, hereafter levied upon in action by virtue of an execution, or a warrant of attachment, or to recover against offidamages by reason of a levy upon, detention, or sale of personal prop-nitors may erty, hereafter made, by virtue of an execution, or a warrant of attach- tuted as dement, is brought against an officer, or against a person who acted by fendants. his command, or in his aid, if a bond or written undertaking, indemnifying the officer against the levy or other act, was given, in behalf of the judgment creditor, or the plaintiff in the warrant, before the action was commenced, the person or persons who gave it, or the survivors, if one or more are dead, may apply to the court, for an order to substitute the applicants, as defendants in the action, in place of the officer, or of the person so acting by his command, or in his aid. § 1422. Notice of the application must be given to the attorney for Notice of each party to the action. If the defendant has not appeared, notice application must be given to him personally. If the pleadings do not sufficiently thereupon. and proofs TITLE 2. Terms may be imposed. When indemnity part of property. show, that the case is one where the order may be granted, the facts, with respect thereto, must be shown by affidavit, or other competent proof. The motion papers must contain a written consent, to be made a defendant in the action, executed by each person, who executed the instrument of indemnity, unless proof, by affidavit, is furnished, tha: those who do not consent are dead. Each consent must be acknowl edged or proved, and certified, in like manner as a deed to be recorded in the county. § 1423. Upon granting the order, the court may, in its discretion, require the applicants to furnish additional security to the plaintiff, and to pay the reasonable expenses of the defendant, necessarily incurred before the order is granted; or it may impose such other terms, for the security of either of the original parties, as justice requires. § 1424. If the indemnity, given by the applicants, related to a part related to only of the property, the court may, in a proper case, direct, that the action be divided into two actions; that the applicants be substituted as defendants in one, without affecting the other; and that the controversy in each action be limited to that part of the property, in respect to which it is to be continued. Where such an order is made, a similar application may be subsequently made, in the action which proceeds against the original defendant. Application when officer is § 1425. If the officer, or person acting by his command, or in his aid, is joined as a defendant, with all the persons entitled to make an applijoined with indemnication, they may apply for an order to strike out his name, as a defendtors. ant. If he is joined as a defendant, with one or more, but not all of them, those who are not made defendants, may apply to be substituted as defendants in his place. In either case, the application is made in the same manner, and is subject to the same provisions, as if it was made as prescribed in section one thousand four hundred and twentyone of this act. Effect of the order. Officer to whom in demnity is given, required to give notice of action. Sale of personal § 1426. An order, made as prescribed in the last five sections, does not affect the merits of the cause of action, or of the defence, except s far as it limits the controversy to particular property. But if the substituted or remaining defendants recover judgment, they are entitled to single costs only. If the action is discontinued, or the complaint dismissed, a new action may be brought, as if the former action had not been brought. § 1427. Where an action is brought, in a case where one or more persons are entitled to make an application, for an order of substitution. as prescribed in section one thousand four hundred and twenty-one of this act, the officer, to whom the instrument of indemnity was given, cannot maintain an action thereupon, against a person entitled to make, but who has not made, such an application; unless notice of the commencement of the action against the officer, or the person acting by his command, or in his aid, is given, before the trial thereof, or at least ten days before judgment by default is taken therein, either to the attorney whose name is subscribed to the execution or warrant of attachment, or, personally, to the judgment creditor, or to the plaintiff in the action in which the warrant of attachment was issued, or to one of the persons who executed the instrument of indemnity. § 1428. Personal property must be offered for sale, in such lots and property; parcels, as are calculated to bring the highest price. Except where how made. the officer is expressly authorized, by this article, to sell property not in his possession, personal property shall not be offered for sale, unless it is present, and within the view of those attending the sale. АКТ. 3. § 1429. At least six days' previous notice of the time and place of a Notices of sale of personal property, by virtue of an execution, must be given, by sale to be posting conspicuously written or printed notices thereof, in at least posted. three public places of the town or city, where the sale is made. SALE, REDEMPTION AND CO ARTICLE THIRD. TANCE OF REAL PROPERTY; RIGHTS AND LIABILITIES SECTION 1430. To what leasehold property this article applies. 1433. Direction to be indorsed on execution. 1434. Notice of sale of real property; how given. 1435. Property, how described therein. Part may be sold. 1437. Manner of conducting sale. 1438. Sheriff to make duplicate certificates of sale. 1439. Certificate to be recorded, etc. 1440. Title to real property not divested before deed. 1441. Rights of holder of the property during intermediate period. 1442. Order to prevent waste; when and how applied for. 1443. Proceedings to punish violation of the order. 1444. Mode and extent of punishment. 1445. How warrant, etc., superseded. 1446. When and how real property sold may be redeemed. 1448. Such redemption avoids the sale. 1449. When creditor may redeem. 1450. What sum to be paid, etc., when creditor redeems. 1451. Redemption by another creditor from a redeeming creditor. 1453. Subsequent redemptions by other creditors. 1454. When creditor may redeem after fifteen months. 1455. When redemption must be made at sheriff's office. 1456. Original purchaser may redeem, when also a creditor. 1457. Creditor may redeem again under another judgment, or mortgage. 1458. Redemption by person entitled to redeem part. 1459. Redemption by owners of undivided shares. 1460. Id.; by creditors having liens on undivided shares. 1461. Right to redeem not affected by agreement. 1462. To whom money paid upon redemption. 1463. Certificate of satisfaction required to effect redemption by creditor. 1465. Id.; as to mortgage creditor. 1466. Id.; as to executor or administrator. 1467. Officers to keep papers open to inspection; when to file them. 1468. When redemption takes effect. 1469. Certificate to be given, when redemption made. 1470. Certificate may be acknowledged and recorded. 1471. When and by whom conveyance to be executed. 1472. To whom conveyance to be executed. 1473. When conveyance made to executor or administrator; effect thereof. 1475. Under-sheriff or successor to act, if sheriff dies. 1476. Money may be paid, etc., to under-sheriff, or deputy-sheriff, who 1477. Application of this article to sale by coroner, or person specially appointed, etc. 1478. Id.; where coroner or person appointed dies, etc. § 1430. The expression, "real property", as used in this and the To what succeeding article, includes leasehold property, where the lessee or his leasehold property TITLE 2. this article applies. Real property held in trust, when lia assignee is possessed, at the time of the sale, of at least five years unexpired term of the lease, and also of the building or buildings, if any, erected thereupon. § 1431. Real property, held by one person, in trust or for the use of another, is liable to levy and sale by virtue of an execution, issued ble to exe. upon a judgment recovered against the person, to whose use it is so held, in a case where it is prescribed by law, that, by reason of the invalidity of the trust, an estate vests in the beneficiary; but special provision is not otherwise made by law, for the mode of subjecting it to his debts. cution. Equity of redemp. not to be sold. Direction dorsed on § 1432. The judgment debtor's equity of redemption, in real proption; when erty mortgaged, shall not be sold by virtue of an exécution, issued upon a judgment recovered for the mortgage debt, or any part thereof. § 1433. Where an execution against property, is issued upon a judgto be in ment, specified in the last section, to the county where the mortgaged execution. property is situated, the attorney, or other person who subscribes it, must indorse thereupon a direction to the sheriff, not to levy it upon the mortgaged property, or any part thereof. The direction must briefly describe the mortgaged property, and refer to the book and page, where the mortgage is recorded. If the execution is not collected out of the other property of the judgment debtor, the sheriff must return it wholly or partly unsatisfied, as the case requires. Notice of sale of real § 1434. The sheriff who sells real property, by virtue of an execution, property; must previously give public notice of the time and place of the sale, as how given. follows: Property, how described therein. Part may be sold. Penalty for irregularity in sale. conducting sale. 1. A written or printed notice thereof must be conspicuously fastened up, at least forty-two days before the sale, in three public places. in the town or city where the sale is to take place, and also in three public places, in the town or city where the property is situated, if the sale is to take place in another town or city. 2. A copy of the notice must be published, at least once in each of the six weeks, immediately preceding the sale, in a newspaper published in the county, if there is one; or, if there is none, in the newspaper printed at Albany, in which legal notices are required to be published. § 1435. In each notice, specified in the last section, the real property to be sold must be described with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there is any, or by some other appropriate description. The validity of a sale is not affected by the fact, that the property sold is part only of the property advertised to be sold. § 1436. A sheriff who sells real property, by virtue of an execution, without having given notice thereof, as prescribed in the last two sections, or otherwise than as prescribed in this chapter, forfeits one thousand dollars to the party injured, in addition to the damages which the latter sustains thereby. Manner of § 1437. Where real property, offered for sale by virtue of an execution, consists of two or more known lots, tracts, or parcels, each lot, tract, or parcel must be separately exposed for sale. If a person who is the owner of, or is entitled by law to redeem, a distinct parcel of the property, of any other description, requires that parcel to be exposed for sale separately, the sheriff must expose it accordingly. No more real property shall be exposed for sale, than it appears to be necessary to sell, in order to satisfy the execution. Sheriff to make du § 1438. The sheriff, who sells real property, by virtue of an execu ART. 3. tion, must make out, subscribe, and acknowledge before an officer plicate cerauthorized to take the acknowledgment of a deed, duplicate certificates tificates of of the sale, containing: 1. The name of each purchaser, and the time when the sale was made. 2. A particular description of the property sold. 3. The price bid for each distinct parcel separately sold. 4. The whole consideration money paid. sale to be re § 1439. The sheriff must, within ten days after the sale, file one of Certificate the duplicate certificates, in the office of the clerk of the county, and corded,etc. deliver another to the purchaser. If there are two or more purchasers, a certificate must be delivered to each. The clerk must immediately record the certificate in a book, kept by him for that purpose, and must index the record, to the name of the judgment debtor. His fees for so doing must be paid by the sheriff, as part of the expenses of the sale. $1440. The right and title of the judgment debtor, or of a person Title to holding under him, or deriving title through him, to real property, sold real propby virtue of an execution, is not divested by the sale, until the expira- divested tion of the period, within which it can be redeemed, as prescribed in deed. this article, and the execution of the sheriff's deed. But if the property is not redeemed, and a deed is executed in pursuance of the sale, the grantee in the deed is deemed to have been vested with the legal estate, from the time of the sale, for the purpose of maintaining an action for an injury to the property. erty not before holder of § 1441. The person entitled to the possession of real property, sold Rights of by virtue of an execution, as prescribed in the last section, may, during the prop the period therein specified, use and enjoy the same as follows, without erty during being chargeable with committing waste: 1. He may use and enjoy it in like manner, and for the like purposes, as it was used and enjoyed before the sale, doing no permanent injury to the freehold. 2. He may make necessary repairs to a building, or other erection thereupon. But this subdivision does not permit an alteration in the form or structure of the building, or other erection. 3. He may use and improve the land, in the ordinary course of husbandry; but he is not entitled to a crop, growing thereon, at the expiration of the period of redemption. 4. He may apply any wood or timber on the land to the necessary reparation of a fence, building, or other erection, which was thereupon at the time of the sale. 5. If he actually occupies the land sold, he may take necessary firewood therefrom for use in his household. intermediate period. prevent how ap § 1442. If, at any time during the period allowed for redemption, Order to the judgment debtor, or any other person in possession of the property waste; sold, commits, or threatens to commit, or makes preparations for com- when and mitting, waste thereupon, the supreme court, or any justice thereof, plied for. within the judicial district, or the county judge of the county, in which the property, or any part thereof, is situated, may, upon the application of the purchaser, or his assignee, or the agent or attorney of either, and proof, by affidavit, of the facts, grant, without notice, an order, restraining the wrong-doer from committing waste upon the property. § 1443. If the person, against whom such an order is granted, com- Proceedmits waste in violation thereof, after the service upon him of the order, into with a copy of the affidavit upon which it was granted, the court or lation of judge, upon proof, by affidavit, of the facts, may grant an order, requir punish vio the order. |