Imágenes de páginas
PDF
EPUB

§ 1467. The sheriff to whom one or more papers, specified in the last four sections, are delivered, must keep them open, at all reasonable times during the period allowed for redemption, to the inspection of all persons interested. He must have all those papers at the sheriff's office, at the times when he is required to attend thereat, for the purpose of enabling creditors to redeem, as prescribed by law; and he must file them in the county clerk's office, within three days after the execution of the deed.

§ 1468. A redemption by a creditor is effected, only when he has paid all the money required to be paid, and filed or delivered all the papers, required to be filed or delivered, as prescribed in this article; and a waiver of any of those requirements is void, as against a person who is entitled subsequently to redeem, Where a redemption is thus effected, it vests in the redeeming creditor all the right, title and interest, which the purchaser acquired by the sale.

§ 1469. Where a redemption is made, as prescribed in this article, the officer or other person, to whom money is paid, or a paper is delivered, for the purpose of effecting the redemption, must execute and deliver, to the person paying the money or delivering the paper, a certificate, stating all the facts which transpired before him, with respect to the redemption.

§ 1470. Such a certificate may be acknowledged or proved, and certified, in like manner as a deed to be recorded in the county where the property is situated. The recording thereof, in the office of the clerk or register of that county, in the book for recording deeds, has the same effect, as against subsequent purchasers and incumbrancers, as the recording of a convey

ance.

§ 1471. Immediately after the expiration of fifteen months from the time of sale; except where a redemption has been made on the last day of the fifteen months, and, in that case, immediately after the expiration of twenty-four hours from the last redemption; the sheriff, who made the sale, must execute the proper deed or deeds, in order to convey to the person or persons entitled thereto, the part or parts of the property sold, which have not been redeemed by the judgment debtor, his heir, devisee, or assignee. The deed conveys to the grantee therein the right, title, and interest, which were sold by the sheriff.

§ 1472. If any part of the property remains unredeemed by a creditor, it must be conveyed, by the sheriff, to the purchaser upon the sale, except where the certificate of sale has been assigned; in which case, it must be conveyed to the last assignee. Any part or parts of the property sold, which have been rendered redeemed] by a creditor, must be conveyed by the sheriff, to the last redeeming creditor, except where he has assigned the certificate of redemption, or has executed any other assignment of his right, title, and interest in the property redeemed by him; in which case, it must be conveyed to the last assignee.

1473. Where a person, entitled to a deed, dies before the delivery of the deed, the sheriff must execute and deliver the deed to his executor or administrator. The property so conveyed must be held, in trust for the use of the heirs or devisees of the decedent, subject to the dower of his widow, if there is one; but it may be sold, in a proper case, for the payment of his debts, in the same manner as land, whereof he died seized.

§ 1474. Before an assignee, or his executor or administrator, is entitled to a deed, as prescribed in the last two sections, each assignment, under which the deed is claimed, must be acknowledged or proved, and certified,

in like manner as a deed to be recorded in the county where the property is situated, and must be filed in the office of the clerk of that county.

1475. Where a sheriff dies, is removed from office, or becomes other. wise disqualified to act, at any time after making a sale of rea! property, by virtue of an execution, the property, or a distinct parcel thereof, may be redeemed, by paying the necessary money, and delivering the necessary papers, to his under-sheriff, who must also execute and deliver the proper deed or deeds of property, not redeemed by the judgment debtor, his heir, devisee, or grantee. If the under-sheriff also dies, is removed from office, or becomes otherwise disqualified to act, the property may be redeemed, by paying the necessary money, and delivering the necessary papers, to the sheriff's successor in office, who must also execute and deliver the proper deed or deeds. The under-sheriff or the sheriff's successor, as the case requires, possesses all the powers, and is subject to all the duties and liabili ties of the sheriff who made the sale, touching the redemption and conveyance of property sold, and the proceedings relating thereto; and each provision of law, regulating those proceedings, and applicable to the sheriff who made the sale, is applicable to his under-sheriff or successor. This section applies where a sale was made, either before or after this act takes effect.

§ 1476. Where real property is sold, by virtue of an execution, by the under-sheriff, or a deputy-sheriff, in behalf of the sheriff, 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, may be paid or delivered, either to the sheriff, or to the under-sheriff or deputy-sheriff, who made the sale.

§ 1477. Where real property is sold, by virtue of an execution, by a person specially appointed by the court, as prescribed in section one thousand three hundred and sixty-two or section one thousand three hundred and eighty-eight of this act, it may be redeemed, as prescribed in this article, as if it had been sold by the sheriff, except as follows:

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 one thousand four hundred and fifty-five of this act, apply to a redemption, upon a sale made as prescribed in this see tion; 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.

S1478. If, when the period for redemption expires, a coroner, or a per son 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.

ARTICLE IV.

REMEDIES FOR FAILURE OF TITLE TO REAL PROPERTY SOLD AND TO ENFORCE CONTRIBUTION.

1479. When evicted purchaser may
recover purchase-money.
1480. Remedy of judgment creditor
thereupon.

§ 1482. Id.; when part owner redeems.
1483. Order of contribution.
1484. Contribution, how enforced by
means of original judgment.
1485. Requisites to preserve the lien.
1486. Entry upon the docket.

1481. Contribution between owners of real property. 81479. The purchaser of real property, sold by virtue of an execution his heir, devisee, grantee, or assignee, who is evicted from the possession thereof, or against whom judgment is rendered, in an action to recover the same, may recover the purchase-money, with 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.

§ 1480. Where final judgment is rendered, against the defendant, in an action specified in subdivision first of the last section, the judgment, by virtue of which the sale was made, remains, in his 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.

§ 1481. Where the real property of two or more persons is liable to satisfy a judgment, and the whole of the judgment, or more than a due proportion thereof, 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; 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.

$1482. Where the heir, devisee, or grantee, of a judgment debtor, having an absolute title to a distinct parcel of real property, sold by virtue of an execution, redeems, as prescribed in section one thousand four hundred and fifty-eight of this act, the property sold, or any part or parts thereof separately sold, which include his property; he may, in like manner maintain an action, to compel a just and equal contribution by those, who own the residue of the property thus redeemed.

§ 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.

§ 1484. For the purpose of enforcing contribution, as prescribed in the last section, the court, in which the action is brought, may, and in a proper case, must, permit the plaintiff to use the original 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 one thousand two hundred and fifty-one and one thousand two hundred and fifty-five of this act, to the extent of the sum, which ought to be so contributed, notwithstanding the payment made by the party seeking contribution,

§ 1485. The lien of the original judgment may 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.

§ 1486. On filing the affidavit and notice, the clerk must make, upon the docket of the judgment, an entry, stating the sum paid, and that the judg ment, 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.

[blocks in formation]

§ 1487. Where a judgment can be enforced by execution, as prescribed in section one thousand two hundred and forty of this act, an execution, against the person of the judgment debtor, may be issued thereupon, subject to the exception specified in the next section, in either of the following

cases:

1. Where the plaintiff's right to arrest the defendant depends upon the nature of the action,

2. [am'd 1879.] In any other case, where an order of arrest has been granted and executed in the action, and, if it was executed against the judg ent debtor where it has not been vacated.

§ 1488. [am'd 1879.] 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, if it was executed against the judgment debtor, has not been vacated.

1489. Unless the judgment debtor is actually confined, without having been admitted to the liberties of the jail, by virtue of an 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.

§1490. An execution against the person of the judgment debtor cannot be issued, without leave of the court, while an execution against his property, issued in the same action, remains unreturned; 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.

§ 1491. Where a judgment debtor has been taken, and remains in custody, by virtue of an execution against his person, another execution cannot be issued, in the same action, against his person or his property, except in a case specially prescribed by law.

§ 1492. If a judgment debtor escapes, after having been taken, by virtue of an execution against his person, he may be retaken, by virtue of a new execution against his person; or an execution against his property may be Issued, as if the execution, by virtue of which he was taken, had been returned, without his having been taken.

1493. Where a judgment debtor, who has been taken by virtue of an execution against his person, dies while in custody, a new execution agamst his property may be issued, as if the execution, by virtue of which he was taken, had been returned without his having been taken.

§ 1494. At any time after a judgment debtor has remained in custody, by virtue of an execution against his person, for the space of thirty days, the judgment creditor may serve upon the sheriff a written notice, requiring him to discharge the judgment debtor from custody, by virtue of the execution. Whereupon the sheriff must discharge the judgment debtor, and return the execution accordingly. After service of such a notice, another execution, against the person of the judgment debtor, cannot be issued upon the judgment; but after his discharge, the judgment creditor may otherwise enforce the judgment, as if the execution, from which he was discharged, had been returned, without his having been taken.

1495. A new execution against property, issued in a case specified in the last two sections, cannot be enforced against an interest in real property, including a chattel real, which was purchased, in good faith, from the judgment debtor, after the recovery of the judgment upon which it is issued; or which was sold by virtue of an execution, issued upon a previous or subsequent judgment.

« AnteriorContinuar »