postpone the sale for not more than three days, without being The fact that there was one more adjournment than is here authorized, and that the time was extended be- The adjournment of a sale by plain- excess. SEC. 3084. When the property sells for more than the amount Disposition of required to be collected, the overplus must be paid to the defend- R15. ant, unless the officer have another execution in his hands on C. '51, 1910. which said overplus may be rightfully applied. An excess from a sale of mortgaged in the sheriff's hands in the manner property under decree of foreclosure, here provided: Payne v. Billingham, may be applied to another execution 10-360. tion. SEC. 3085. If the property levied on sell for less than sufficient Another execufor that purpose, the plaintiff may order out another execution, R. 23316. which shall be credited with the amount of the previous sale. The C. 51, § 1911. proceedings under this second sale shall conform to those hereinbefore prescribed. good unless R. 3317. SEC. 3086. When property is unsold for want of bidders, the Levy holds levy still holds good; and, if there be sufficient time, it may again plaintiff abanbe advertised or the execution returned and one issued command- dons. ing the officer to sell the property, describing it, previously levied c. 51, 1912. on, to which a clause may be added, that if such property does not produce a sum sufficient to satisfy such execution, the officer shall proceed to make an additional levy, on which he shall proceed as on other executions, or the plaintiff may, in writing filed with the clerk or justice, abandon such levy upon paying the costs thereof. In which case execution may issue with the same effect as if none had ever been issued. A second levy cannot be made un- | has expired, is valid, if the levy was ti. the first is disposed of: Downard v. made while the execution was in Crenshaw, 49-296. force: Butterfield v. Walsh, 21-97; and see notes to § 3037. A sale under an execution which fendant: sale SEC. 3087. If the defendant is in actual occupation and Notice to depossession of any part of the land levied on, the officer having void without. the execution, shall, at least twenty days previous to such sale, R. 3318. serve the defendant with written notice, stating that the execution is levied on said land, and mentioning the time and place of sale; and sales made without the notice required in this section, may be set aside on motion made at the same or the next term thereafter. Notice is not required where de occupied by, a tenant; but where the fendant is not personally in the act-owner is in the actul use and enjoyual possession or occupancy of the property: Babcock v. Gurney, 42154; Bennett v. Burton, 44-550. The owner is not, within the meaning of this section, in the actual Occupation" of land leased to, and ment of the property, although not and give officer plan. R. 3319. thereon: Fleming v. Maddox, 30-| missive, it seems there might be cases 239. within the letter of the statute where it would not be enforced: Jensen v. Woodbury, 6–515. The provision that in the cases here referred to the sale may be set aside, does not invest the court below This section applies to sales under with such discretion that its ac- special, as well as under general extion cannot be reviewed on appeal.ecution: Ibid.; Fleming v. MadThough mandatory rather than per-dox, 30-239. If SEC. 3088. At any time before nine o'clock A. M. of the day of Defendant may the sale, the defendant may deliver to the officer a plan of division divide land of the land levied on, subscribed by him, and in that case the officer shall sell according to said plan so much of the land as may be necessary to satisfy the debt and costs and no more. no such plan is furnished, the officer may sell without any division. Distinct or separate parcels or rule. The provision of this section as tracts which can have no increased to subdivision does not affect that rule value by reason of being sold together, except as here specified: Williams v. cannot be sold en masse, even if no Allison, 33–278, 288; and as to the efbid is made for them when offered fect of a sale en masse, see notes to § separately. This is the common law 5082. When pur SEC. 3089. When the purchaser fails to pay the money when demanded, the plaintiff or his attorney may elect to proceed against chaser fails to him for the amount; otherwise the sheriff shall treat the sale as a pay. R. 23320. nullity, and may sell the property on the same day, or after a postponement as above authorized. C. '51, 1913. Sales vacated when execu- Where the judgment creditor bids sale as a nullity, as here provided: off the property and refuses to pay Reese v. Dobbins, 51-282. the costs, the sheriff may treat the SEC. 3090. When any person shall purchase at a sheriff's sale any real estate on which the judgment upon which the execution issued was not a lien at the time of the levy, and which fact was unknown to the purchaser, the court shall set aside such sale on motion, notice having been given to the debtor as in case of action, and a new execution may be issued to enforce the judgment, and upon the order being made to set aside the sale, the sheriff or judgment-creditor shall pay over to the purchaser the purchase money; said motion may also be made by any person interested in the real estate. The sale will not be set aside if a rendered in another county and no debtor has some interest in, or title transcript was filed in the county to, the property, although it be not where the land was situated: Chamof value. The doctrine of careat emp-bers v. Cochran, 18-159. tor applies: Hamsmith v Espy, 19 -444; Holtzinger v. Edwards, 51383. This section, held, not applicable to a case where defendant had title to the property sold, and the judgment was not a lien thereon, because it was If the judgment is against princicipal and surety, and the sale be set aside, as here provided, the surety will not be held discharged, unless he has, by reason of the sale, changed his condition or been prejudiced: Ibid. SEC. 3091. Money levied upon may be appropriated without being advertised or sold. The same may be done with bank bills, Disposition of drafts, promissory notes, or other papers of the like character, if the plaintiff will receive them at their par value as cash, or if the officer can exchange them for cash at that value. money levied on. R. 3322. C. 51, 1914. The excess remaining in the sher- | notes. iff's hands from sale of property un Bank bills, etc., may be levied on der execution, may be appropriated and sold: See § 3046 and notes. as here provided: See $3084 and against execu isfied from real SEC. 3092. When a judgment has been obtained against the Judgment executor of one deceased, or against the decedent in his lifetime, tor or dece which the personal estate of the deceased is insufficient to satisfy, dent: how satthe plaintiff may file his petition in the office of the clerk of the property. court where the judgment is rendered against the executor, the R. 33 heirs and devisees of real estate, if such there be, setting forth the 13 G. A. ch. 167, facts, and that there is real estate of the deceased, describing its location and extent, and praying the court to award execution against the same. [The printed Code has "a lien "in the fifth line, in place of "rendered," as above and as in the original. The section so stood in the bill as reported by the Code Commissioners, following 136. A., ch. 167, $29, but before adoption by the legislature it was amended to read as here given and as it originally stood in the Revision. This amendment was not incorporated into the printed Code.] C. 51, 1918. 8 29. R. 23321. SEC. 3093. The person against whom the petition is filed shall Notice, be notified by the plaintiff to appear on the first day of the term, C. 51, 1919. and show cause, if any he have, why execution should not be 13 G. A. ch. 150, awarded. 1. and returned. C. '51, 1920, SEC. 3094. The notice shall be served and returned in the How served ordinary manner, and the same length of time shall be allowed R. 43325. for appearance as in civil actions, and service of such notice on 13 G. A. ch. 159, non-resident defendants may be had in such cases by publication. 2. SEC. 3095 At the proper time the court shall award the tion unless sufficient cause be shown to the contrary. SEC. 3096. The non-age of the heirs or devisees shall not be C. 51, 1921. deemed such sufficient cause. execu Execution awarded. R. 3326. Non-age. Mutual judg C. '51, 1923. SEC. 3097. Mutual judgments, the executions on which are in C. 51. 1922. the hands of the same officer, may be set off the one against the ments set off. ether; except that the costs shall not be set off, unless the balance R. 28, of cash actually collected on the large judgment is sufficient to pay the costs of both judgments, and such costs shall be paid therefrom accordingly. A judgment against two persons, the property of the respective parties jointly, may be set off against a judg- thereto: Bell v. Perry, 43-368. ment in tavor of one of them again-t the creditor in such joint judgment; Ballinger v. Tarbell, 16–491. Judgments cannot be set off, the one against the other, unless they are strictly mutual and are still in fact Where the judgment has been fraudulently assigned for the purpose of preventing the set-off here conteinplated, such set off may be obtained as equitable relief in an action in equity: Hurst v. Sheets, 14-322. When sale ab R. 23329. SEC. 3098. When real property has been levied upon, if the solute. estate is less than a leasehold having two years of an unexpired c. 51, 1924. term, the sale is absolute. SEC. 3099. When the estate is of a larger amount, the erty is redeemable as hereinafter prescribed. When redeem prop- able. R. 3330. C. '51, ¿ 1924. APPRAISEMENT OF PERSONAL PROPERTY. SEC. 3100. amount it must Personal property levied upon and advertised for sale on execution must be appraised before sale by two disinterested How made and householders of the neighborhood, one of whom shall be chosen sell for. by the execution debtor and the other by the plaintiff, or in case of the absence of either party, or if either or both parties neglect or refuse to make choice, the officer making the levy shall choose one or both, as the case may be, who shall forthwith proceed to return to said officer a just and true appraisement, under oath, of said property if they can agree; and in case they cannot agree, they shall choose another disinterested householder, and with his assistance they shall complete such appraisement, and the property shall not be sold for less than two-thirds of said valuation; provided, the same shall be offered for three successive days at the same place and hour of day as advertised, and if no offer equal to two-thirds the value thereof be made, then it shall be lawful to sell said property for one-half of said valuation. Under Rev. $336', providing for | as between the parties; and that the appraisement of real property before fact that the debtor's title was doubtsale, held, that the fact that one of ful, or other such circumstances affecthe appraisers was not a householder, ting the value of the property, would as provided by that section, would be immaterial. Such facts should be not render the sale void: Hill v. Baker, taken into account by the appraisers 32-302; but in such a case, where the and the value fixed by them should lands were appraised at less than one-be that of defendant's interest in the half their real value, held, that the property: Maple v. Nelson, 31-32'. debtor would be allowed to releem from the judgment creditor: Woods v. Cochrane, 38-484. The word "neighborhood" con strued: Ibid. It is competent to change the temedy as to existing contracts, by changing from a sale under appraisement to sale without appraisement, but a law changing from a sale without Under the same section of the Rev., appraisement to one with appraiseheld, that a sale for a less proportionment cannot apply to contracts alof the appraised value than there ready made: Olmstead v. Kellogg, authorized, would be invalid, at least 47-460, and cases cited. REDEMPTION. SEC. 3101. If the property sold is not subject to redemption, the sheriff must execute a deed therefor to the purchaser; but if the same is subject to redemption, he shall execute to such purchaser a certificate containing a description of the property and the amount of money paid by such purchaser, and stating that unless redemption is made within one year thereafter according to law, he or his heirs or assigns, will be entitled to a deed for the same. SEC. 3102. The defendant may redeem real property at any time within one year from the day of sale as herein provided, and will, in the meantime, be entitled to the possession of th› property. But in no action where the defendant has taken an appeal from the circuit or district court, or stayed execution on the judg ment, shall he be entitled to redeem. The legal estate of the owner, is not divested by the sale until the time for redemption has expired, and a deed is made to the purchaser. A judgment recovered against him during the period allowed for such redemtion, becomes a lien on his interest in the property, and in case he or his assignée redeems from the prior sale, such judgment may be enforced against the property so redeemed, although the holder of the judgment failed to exercise his own right of redemption from the sale: Curtis v. Millard, 14-128. If the debtor or his grantee or assignee redeems land sold in partial satisfaction of a jud ment, it at once becomes liable to satisfy the unpaid balance of such judgment: Stine r. Chambless, 18-474; Crosby v. Elkader Lodge, 16-397. But these cases are overruled by Clayton v Ellis, 50-590, cited under following section. Defendant's right of possession or redemption may be levied upon and The purchaser at a sheriff's sale of property subject to redemption does not acquire the legal title until the period of redemption has expired: Shiner v. Hammond, 51-491. and conveyed by deed with covenants In computing the time here allowed The restriction upon defendant as The statutory right to redeem withto redemption in case of appeal tak-in one year, cannot be extended by en, or a stay of execution, does not an act of the party claiming the right, apply to creditors hol ing liens (such as a suit to redeem or the like, 3104) and such lien-holders have the without more: Hughes v. Feeter, 23sam right to redeem in such cases 547. as in any other: Sieben v. Becker, 53-24. The defendant may redeem where he has previously sold the property The provisions of this section are applicable to foreclosure sales: Barret v. Blackmar, 47-565. creditors. SEC. 31 For the first six months after such sale, his right when by to redeem is exclusive; but if no redemption is made by him at R. 3333. the end of that time, any creditor of the defendant whose C. 51. 1927. demand is a lien upon such real estate, may redeem the same at any time within nine months from the day of sale. But a mechanics' lien, before judgment thereon, is not of such character as to entitle the holder to redeem. The holder of a judgment, recover-money judgment, but a judgment in ing on a debt contracted prior to the equity establishing the lien againsacquisition of a homestead, may re- the specific property: Spink v. Mcdeem from a sale of such homestead, Call, 52-432. although the judgment record does! This section and the following, re- A lien holder may redeem irrespective of whether an appeal or stay of execution is taken: See § 3102 and notes. holder, not made a party to a fore- There is a difference between redeeming from a judgment and reAn execution creditor who has deeming from a sae under a judgbought in the property under his ex-m nt. A junior lien-holder cannot ecution does not have a lien upon such property for any unsatisfied balanc" of his claim, and neither h nor his assignee can redeem und such sale: (overruling Crosby Elkader Lodge, 16-3399 Clayton v. Ellis, 5-599. A re option made by a creditor within the first six months, will be good as to a subsequent lien-holder. It is only the debtor and purchaser who can object to such redemption: Wilson r, Conklin, 22–452. The judgment contemplated as sufficient to entitle the holder of a mechanic's lien to redeem is not a mere redeem from a prior judgment under C. '51, 1928. SEC. 3104. Any creditor whose claim becomes a lien prior to who creditor. the expiration of the time allowed by law for the redemption by R. 13551. creditors, may redeem. A mortgagee may thus redeem before or after the debt secured by the mortgage falls due. A mortgagee may redeem though | possibly never ripen into a certainty: the liability secured by the mortgage Crossen v. White, 19–109. is only a contingent one and might |
