Imágenes de páginas

acquires all the right and interest of the judgment debtor, and is entitled to the possession of the property, on complying with the terms and conditions, upon which the judgment debtor could obtain possession thereof. This section does not apply to property, of which the judgment debtor is unconditionally entitled to the possession.

§ 1413. Where an officer has seized personal property of a partnership, before or after its dissolution, upon a levy upon the interest therein of a partner, made by virtue of an execution against his individual property, the other partners, or former partners, having an interest in the property, or any of them, may, at any time before the sale, apply to a judge of the court or to the county judge of the county, where the seizure was made, upon an affidavit, showing the facts, for an order, directing the officer to release the property, and to deliver it to the applicant.

1414. Upon such an application, the applicant must give an undertaking, with at least two sureties, approved by the judge, to the effect, that he will account to the purchaser, upon the sale to be made by virtue of the execution, of the interest of the judgment debtor in the property seized, in like manner as he would be bound to account to an assignee of such an interest; and that he will pay to the purchaser the balance, which may be found due upon the accounting, not exceeding a sum, specified in the undertaking, which must be not less than the value of the interest of the judg ment debtor, in the property seized by the sheriff, as fixed by the judge. The provisions of sections six hundred and ninety-five and six hundred and ninety-six of this act apply to the proceedings, taken as prescribed in this and the last section.

§ 1415. Where a warrant of attachment has been levied upon the interest of a defendant, as a partner, in personal property of a partnership, and the attachment has been discharged as to that interest, as prescribed in sections six hundred and ninety-three and six hundred and ninety-four of this act, a levy, by virtue of an execution against his individual property, cannot be made upon his interest in the same property, unless the warrant of attachment has been vacated, or annulled.

§ 1416. Where personal property of a partnership has been released, upon giving an undertaking, as prescribed in the last three sections, if the execution, by virtue of which the levy was made, is set aside, or is satisfied without a sale of the interest levied upon, the untertaking 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.

$1417. Where personal property of a partnership has been so released, the interest of the judgment debtor therein may be sold by the officer; and the purchaser, upon the sale, acquires all that interest, as if he was an assignee thereof. If the purchase-money exceeds the amount of all the executions and warrants of attachments, 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.

§ 1418. If personal property, levied upon as the property of the judgment debtor, is claimed, by or in behalf of another person, as his property, the officer may, in his discretion, empanel a jury to try the validity of the claim.

§ 1419. [am'd 1877.] If, by their inquisition, the jurors find that the property belongs to the claimant, they must also determine its value. Thereupon the officer may relinquish the levy, unless the judgment creditor gives him an undertaking, with at least two sufficient sureties, to the effect, that the sureties will indemnify him, to an amount therein specified, 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


§ 1420. If the property is found to belong to the defendant, the finding does not prejudice the right of the claimant, to bring an action to recover the property so levied upon, or damages by reason of the levy, detention, or sale.

1421. Where an action to recover a chattel, hereafter levied upon by virtue of an execution, or a warrant of attachment, or to recover damages by reason of a levy upon, detention, or sale of personal property, hereafter made, by virtue of an execution, or a warrant of attachment, is brought against an officer, or against a person who acted by his command, or in bis 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 each party to the action. If the defendant has not appeared, notice must be given to him personally. If the pleadings do not sufficiently 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, that those who do not consent are dead. Each consent must be acknowledged 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 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 defend


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 application, they may apply for an order to strike out his name, as a defendant. It 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 twenty-one of this act.

§ 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 so 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 parcels, as are calculated to bring the highest price. Except where 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.

§ 1429. At least six days' previous notice of the time and place of a sale of personal property, by virtue of an execution, must be given, by posting conspicuously written or printed notices thereof, in at least three public places of the town or city, where the sale is made.



1430. To what leasehold property this § 1440. Title to real property not diarticle applies.

1431. Real property held in trust,

when liable to execution.

1432. Equity of redemption; when not to be sold.

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.

1436. Penalty for irregularity in sale.
1437. Manner of conducting sale.
1438. Sheriff to make duplicate cer-
tificates of sale.

1439. Certificate to be recorded, etc.

vested 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.
1447. By whom such redemption may
be made.

1448. Such redemption avoids the

1449. When creditor may redeem.

[blocks in formation]

§ 1430. The expression, "real property," as used in this and the succeeding article, includes leasehold property, where the lessee or his 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 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.

1432. The judgment debtor's equity of redemption, in real property mortgaged, shall not be sold by virtue of an execution, issued upon a judg ment recovered for the mortgage debt, or any part thereof.

§ 1433. Where an execution against property, is issued upon a judgment, specified in the last section, to the county where the mortgaged property 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 unsatified, as the case requires.

1434. The sheriff who sells real property, by virtue of an execution, must previously give public notice of the time and place of the sale, as follows:

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 r 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.

$1435. 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.

$1438. The sheriff, who sells real property, by virtue of an execution, must make out, subscribe, and acknowledge before an officer authorized to take the acknowledgment of a deed, duplicate certificates 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.

§ 1439. The sheriff must, within ten days after the sale, file one of the duplicate certificates, in the office of the clerk of the county, and 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. [am'd 1881.] The right and title of the judgment debtor or of a person holding under him or deriving title through him to real property sold by virtue of an execution is not divested by the sale until the expiration of the period within which it can be redeemed as prescribed in 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. And if the title of such grantee or his assigns is adjudged for any reason or cause whatsoever to be null and void in any action for that purpose brought by the judgment debtor or his assigns, such judgment shall have no force or effect unless within twenty days after the entry of such judgment the plaintiff shall pay to such grantee or his assigns the sum of

« AnteriorContinuar »