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erty.

4. The purchaser of encumbered movable property must, Purchaser to give before possession thereof is delivered to him, give an oblimove the prop- gation, with good surety, payable to the encumbrancer and

the owner, stipulating that the property shall not be removed out of the county, and shall be preserved and forthcoming, unavoidable accidents excepted, to answer the encumbrance, and for redemption, and deliver the obligation to the officer, to be returned with the execution.

5. Courts of equity shall have the control of all encumCourts of equity bered property sold under execution, and the power to make

all needful orders for the preservation and forthcoming of the property and its issues and profits, to satisfy the encumbrance, and to secure the rights of others.(a)

$ 2. When an execution is placed in the hands of an offi

cer for collection in a county in which the plaintiff does not Ceipt for the mon: reside, he may, by indorsement on the execution, name an

agent in the county to which the execution is directed, who shall have power to receive and receipt for the money when collected.

to have control.

Plaintiff may ap

ey.

ARTICLE XV.

Certain Sales Invalid. $1. Sales made under execution by fraud, covin, or collu+ R. S., 490-1. sion, may be set aside on the motion of any person aggriev

What sales invalid.

ed, or by petition in equity. (a) A sheriff may lawfully take personal property, mortgaged and levied upon, into his pos. session to sell the equity of redemption; and a purchaser obtaining possession from the sheriff has the right to hold it against the mortgagor. (Mercer vs. Tinsley, 14 B. M., 275.)

2. The mortgagee holding the legal title, is his debt be due and unpaid, would have a right to recover possession of the mortgaged property from the mortgagor himself, and from any per. son holding under him by private purchase or an execution sale. (Ibid, 276.)

3. If the mortgagor and mortgagee consent, in writing, to the sale of mortgaged property under execution, the title of both will pass to the purchaser. (Ibid, 276.)

4. The equity of redemption in lands which may descend to heirs is liable to sale under execution for a debt of the ancestor, upon a judgment against the heirs for such debt. (Brace, @c., vs. Shaw, &c., 16 B. M., 78.)

5. It is not necessary that the sheriff should specifically set forth in his levy and sale the amount of the mortgage lien upon the lands. When he states the interest to be an equity of redemption, or the title to the land under the mortgage, he, of course, refers every person concerned to the records. (Ibid, 80.)

6. The pendency of a suit to foreclose a mortgage upon land presents no obstacle to the sale under execution of the equity of redemption on behalf of another creditor. (Ibid, 80.)

7. An absolute sale of personal property must be followed by possession, or it is fraudulent per se. But mortgages and deeds of trust for the payment of debts, not being absolute sales of the property, but only creating an encumbrance thereon, are not embraced by this rule, and the interest of the grantor is liable to execution. (Lyons vs. Field, 17 B. M., 548–9; see Philips, etc., vs. Winslow, &C., 18 B. M., 449.)

year.

whence execution issued.

may be issued.

1. If by motion, it must be commenced within one year Motion within 1 from the sale.

2. It must be made in the court whence the execution in the court issued. 3. The parties affected by the motion must have ten days Ten days' notice

to be given. previous notice in writing, setting forth the grounds relied on for invalidating the sale. 4. But whenever a sale under execution shall be quashed, Acts 1869, 18.

When sale quashvacated, or set aside, for any cause not affecting the validity ed, lien not deof the execution, said sale, quashal, vacation, or setting aside, ditioni exponas shall in nowise destroy or affect the lien created by the execution or levy under said execution, but the same shall remain in full force and virtue, and a venditioni exponas may be issued on said levy, and the property sold. $ 2. No officer shall, directly or indirectly, bid for or buy Officer shall not

buy. any property which may be sold under an execution by his deputy or principal, or by his co-deputy.

1. The right of property so sold and purchased by any such officer, or by another to his use, shall not thereby be changed.

2. Any deed or bill of sale made for property so sold shall be void.

491-2. Executiun first to

or defendant re

ARTICLE XVI. To what Counties Executions may Issue. § 1. No execution shall issue to any other county than 1 R. S., that in which the judgment was rendered, or that in which issue to county the defendant resides, until execution has issued to one of ment is rendered the counties named, and has been returned by the proper sides. officer, no property found, as to all or part thereof.

1. This section is not to apply when the plaintiff, his agent ! affidavit is or attorney, shall make affidavit and file the same with the to another county clerk of the court in which the judgment was rendered, stating that the defendant in the judgment has not sufficient property in the county in which the judgment was rendered, nor in the county in which he resides, to satisfy the same, subject to execution. Upon filing such affidavit, execution shall issue to any or as many counties as the plaintiff may direct.

2. The plaintiff shall be liable to the defendant for any damage he may sustain by procuring an execution to issue wrongfully under the provisions of this article.

Plaintiff liable for damages.

Sheriff need not go out of his coun

turn.

§ 2. No sheriff shall be required to go out of his county ty to make re- to return process in a civil case.

1. He shall, if the plaintiff hath no known agent or attorMay inclose pro- ney in the county, transmit such process by mail, with the

return thereon (keeping a copy), directed to the clerk of the court whence the same issued.

2. When so sent in proper time and manner, the officer shall not be liable.

cess by mail.

1R. S., 492-3.

Officer not to de

torney

ARTICLE XVII. Duties and Liabilities of certain Officers. § 1. When an officer shall delay advertising property for

sale taken under execution for more than twenty days after Officer shall ads the levy, he may, on the motion of either the plaintiff or twenty days after levy.

defendant in the execution, be fined by the court whence the execution issued, not less than five nor more than twenty dollars and costs, to the use of the party making the motion.

1. The officer must have at least ten days' previous notice, in writing, of such motion.

2. The officer shall, moreover, be liable on his bond to the party aggrieved for damages.

$ 2. It shall be no defense to an action or motion against Myers Sup., 755. a collecting officer, for failure of duty of himself or deputy, lay without write that the plaintiff directed said officer to delay, or in anywise plaintiff or at stay proceedings thereon, unless said defense is supported

by the written consent or request of such plaintiff, his agent or attorney, so to do.

$ 3. When any writ of execution or attachment for not Failure to make performing a judgment in chancery or equity is placed in

an officer's hands to execute, and he shall fail to return the same by the return day thereof, the court whence it issued may, on motion, fine such officer, for the use of the party injured, not exceeding fifty dollars — three days' previous notice of such motion being given.(a)

§ 4. When a sheriff or other like officer shall have re

ceived the money, or any part thereof, on any writ of exe(a) Anciently, the use or office of the “writ of execution” was to bring the party into contempt, if he failed to perform a decree or order. It was never in use in this State, so far as we

The practice in Kentucky has been to serve the defendant with a copy of the order or decree, obedience to which is required of him. For this reason it is not probable that this old writ of execution is the one referred to in the statute. (Deposit Bank of Cynthiana vs. Glenn, i Metcalfe, 587.)

return.

Tailure to pay

money when col

lected.

2. The words “writ of execution,” as used in the statute, mean an execution issued upon a judgment at law; and a sheriff who fails to make a return of such execution by the return day thereof, is liable, on motion, to a fine of fifty dollars, imposed by that section for such failure. lbild, 587.)

are aware.

cution or other process, and shall not immediately pay the same to the party entitled thereto, or his agent or attorney, on a proper demand thereof, he and his sureties, or any one of them, or his personal representatives, heirs or devisees, shall be liable to such party for the amount collected, and fifteen per centum per annum interest thereon, from such demand until paid, and the costs of recovery, legal and extraordinary.

1. The remedy shall be by motion or action in the court Remedy. whence the execution issued.

2. Ten days' previous notice of the motion, specifying the Notice: grounds thereof, shall be given. $ 5. Any sheriff or other like officer, in whose hands a Failure to make

return within 30 writ of execution is placed to do execution thereof, who days. fails to return the same to the office whence it issued, for thirty days after the return day of the same, without reasonable excuse for such failure, shall, with his sureties or the personal representatives, heirs, or devisees of either, be liable, jointly or severally, to the plaintiff in such execution, for the amount thereof, and thirty per centum damages thereon, and costs of recovery. The remedy shall be the same as is given in the next preceding section.

$ 6. The foregoing section shall not apply to any case in Acts 1861-'7'3, which the collecting officer had, at the commencement of Foregoing section the proceeding, paid the plaintiff the amount of the execu- where the money tion, or if he had paid in part, then the thirty per cent. shall only be adjudged against him upon the portion unpaid.

$ 7. If the defendant in an execution is insolvent, and has When defendant no property in the county out of which the execution or any part thereof can be made, the collecting officer shall not be held liable for the amount thereof, by reason of his failure to return the same within thirty days after the return day. But in such case the liability shall be for thirty per centum on the amount of the execution.

§ 8. When the sheriff or other like officer collects any When injunction money under an execution in his hands, and the defendant money paid over. shall obtain an injunction or other writ staying proceedings on such execution, before the money is paid over to the plaintiff, the officer must pay the money, or the part for which the execution is stayed, to the defendant from whom it was collected.

259.

has been paid.

is insolvent.

1. Any officer refusing to pay over money, as herein diLiability. rected, shall be liable as in case of a refusal to pay over

money to the plaintiff collected on execution.

2. All motions allowed by this chapter must be comMotions in two menced within two years after the cause of such motion

years.

accrues.

ARTICLE XVIII.

Miscellaneous Matters. § 1. Executions issued by a judge of a county court, on IR. S., 494.

judgments rendered at its quarterly sittings, or by a justice Executions from quarterly courts. of the peace, shall bear test in the name of the officer issu

ing the same, and shall be governed by the provisions of this chapter, so far as the same are appropriate.

$ 2. When an execution is issued jointly against a perWhen issued sonal representative and heirs and devisees, it shall be the against personal representatives, duty of the officer in whose hands it is placed for collection heirs, &c.

to sell first the estate in the hands of the personal representative; second, the estate descended to the heir; and third, the estate devised. The same order shall be observed when the execution issues against only two of the classes named. But the defendants may, by writing, direct the sale to take place in any order they desire.

CHAPTER 39.

EXECUTORS AND ADMINISTRATORS.

ART. 1. Powers, duties, &c.

2. Appointment, bond, oath, and responsibilities of administrators.

Public administrator and guardian.

Executors,

ARTICLE I.
Powers, duties, bond, oath, and responsibilities of Executors and

Administrators, and Public Administrator and Guardian.

§ 1. The person named in a will as executor of it, shall IR. S., 497

not act as such to any extent until the will, or an authentifore acting, must cated copy of it, is admitted to record, and he has executed

execute bond and taken the oath required by law in the court in bond, and take an

which the record is made; but he may provide for the burial of the testators, pay the reasonable funeral expenses, and take care of and preserve the estate.

be

bated,

oath.

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