all other respects regular: Provided further, that purchasers and their assigns shall have held continuous and adverse possession under a sheriff's deed for three years: Provided further, that the rights of minors and married women shall in nowise be prejudiced hereby.

1901, c. 742.

647. Private acts regulating land sales repealed. All private acts, by which lands in particular counties are required or allowed to be sold at places, or at times, other than those hereinafter prescribed, are hereby repealed.

Code, s. 458; 1868-9, c. 237, s. 12.

648. Advertisement of sale of personal property. No sale of personal property under execution shall be made until the same has been advertised for ten days at the door of the courthouse of the county in which the same is to be sold, and at three other public places in said county, and the advertisement shall designate the place and the time of said sale.

Code, s. 460; R. C., c. 45, s. 16; 1808, c. 753; 1820, c. 1066.

649. Penalty for selling contrary to law. Any sheriff or other officer, who shall make any sale contrary to the true intent and meaning of this subchapter, shall forfeit and pay two hundred dollars to any person suing for the same, one-half for his own use and the other half to the use of the county where the offense is committed.

Code, s. 461; R. C., c. 45, s. 18; 1820, c. 1066, s. 2; 1822, c. 1153, s. 3.

650. No sale for want of bidders; officer's return; penalty. Whenever a sheriff or other officer shall return upon any execution that he has made no sale for want of bidders, he shall state in his return the several places at which he has advertised the sale of the property levied on, and the places at which he hath offered the same. for sale; and any officer failing to make such specification, shall on motion be subject to a fine of forty dollars; and every constable, for a like omission of duty, shall be subject to a fine of ten dollars, for the use and benefit of the plaintiff in the execution; for which, on motion of the plaintiff, judgment shall be granted by the court to which the execution shall be returned; or, in the case of a justice's execution, by any justice to whom the execution shall be returned: Provided, that nothing in this section, nor any recovery under the same, shall be a bar to any action for a false return against the sheriff or other officer.

Code, s. 462; R. C., c. 45, s. 19; 1815, c. 887.

651. Officer to prepare deeds for property sold. Sheriffs or other officers selling lands by authority of any execution or process, shall, upon payment of the price, prepare, execute and deliver to the purchaser a deed for the property purchased: Provided, that the purchaser of land shall furnish the officer with a description of the land.

Code, s. 471; R. C., c. 45, s. 30; 1848, c. 39.

652. Petition by claimant; execution suspended; issues found. Any defendant against whom a judgment shall be rendered for land, may, at any time before the execution of such judgment, present a petition to the court rendering the same, stating that he, or those under whom he claims, while holding the premises under a color of title believed by him or them to be good, have made permanent improvements thereon, and praying that he may be allowed for the same, over and above the value of the use and occupation of such land; and thereupon the court may, if satisfied of the probable truth of the allegation, suspend the execution of such judgment and impanel a jury to assess the damages of the plaintiff and the allowance to the defendant for such improvements: Provided, that in any such action, such inquiry and assessment may be made upon the trial of the cause.

Code, s. 473; 1871-2, c. 147.

653. Annual value of land and waste charged against defendant. The jury, in assessing such damages, shall estimate against the defendant the clear annual value of the premises during the time he was in possession thereof, exclusive of the use by the tenant of the improvements thereon made by himself or those under whom he claims, and also the damages for waste, or other injury, to the premises committed by the defendant.

Code, s. 474; 1871-2, c. 147, s. 2.

654. Damages and rental value limited to three years, when. The defendant shall not be liable for such annual value for any longer time than three years before the suit, or for damages for any such waste or other injury done before said three years, unless when he claims for improvements as aforesaid.

Code, s. 475; 1871-2, c. 147, s. 3.

655. Value of improvements estimated. If the jury shall be satisfied that the defendant, or those under whom he claims, made on the premises, at a time when there was reason to believe the title

good under which he or they were holding the said premises, permanent and valuable improvements, they shall estimate in his favor, the value of such improvements as were so made before notice, in writing, of the title under which the plaintiff claims, not exceeding the amount actually expended in making them and not exceeding the amount to which the value of the premises is actually increased thereby at the time of the assessment.

Code, s. 476; 1871-2, c. 147, s. 4.

656. Improvements to balance rents. If the sum estimated for the improvements exceed the damages estimated by the jury against the defendant as aforesaid, they shall then estimate against him for any time before the said three years, the rents and profits accrued against, or damages for waste or other injury done by him, or those under whom he claims, so far as may be necessary to balance his claim for improvements; but in such case he shall not be liable for the excess, if any, of such rents, profits, or damages beyond the value of improvements.

Code, s. 477; 1871-2, c. 147, s. 5.

657. Verdict and judgment to be for difference. After offsetting the damages assessed for the plaintiff, and the allowances to the defendant for the improvements, if any, the jury shall find a verdict for the balance for the plaintiff or defendant, as the case may be, and judgment shall be entered therefor according to the verdict.

Code, s. 478; 1871-2, c. 147, s. 6.

658. Balance due defendant a lien. Any such balance due to the defendant shall constitute a lien upon the land recovered by the plaintiff until the same shall be paid.

Code, s. 479; 1871-2, c. 147, s. 7.

659. Recovery by plaintiff from remainderman, betterments paid. If the plaintiff claim only an estate for life in the land recovered and pay any sum allowed to the defendant for improvements, he or his personal representative may recover at the determination of his estate from the remainderman or reversioner, the value of the said improvements as they then exist, not exceeding the amount as paid by him, and shall have a lien therefor on the premises in like manner as if they had been mortgaged for the payment thereof, and may keep possession of said premises until it be paid.

Code, s. 480; 1871-2, c. 147, s. 8.

660. Not applicable to suit by mortgagee. Nothing herein shall extend or apply to any suit brought by a mortgagee or his heirs

or assigns against a mortgagor or his heirs or assigns for the recovery of the mortgaged premises.

Code, s. 481; 1871-2, c. 147, s. 9.

661. Value of premises without improvements, when. When the defendant shall claim allowance for improvements, the plaintiff may by entry on the record require that the value of his estate in the premises without the improvements shall also be ascertained. Code, s. 482; 1871-2, c. 147, s. 10.

662. How estimated. The value of the premises in such cases shall be estimated as it would have been at the time of the inquiry, if no such improvements had been made on the premises by the tenant or any person under whom he claims, and shall be ascertained in the manner herein before provided for estimating the value of improvements.

Code, s. 483; 1871-2, c. 147, s. 11.

663. Plaintiff's election that defendant take premises. The plaintiff in such case, if judgment is rendered for him, may, at any time during the same term, or before judgment is rendered on the assessment of the value of the improvements, in person or by his attorney in the cause, enter on the record his election to relinquish his estate in the premises to the defendant at the value as ascertained, and the defendant shall thenceforth hold all the estate that the plaintiff had therein at the commencement of the suit: Provided, he pay therefor the said value with interest in the manner in which the court may order it to be paid.

Code, s. 484; 1871-2, c. 147, s. 12.

664. Payment made to court; land sold on default. The payments shall be made to the plaintiff, or into court for his use, and the land shall be bound therefor, and if the defendant fail to make the said payments within or at the times limited therefor respectively, the court may order the land to be sold and the proceeds applied to the payment of said value and interest, and the surplus, if any, to be paid to the defendant; but if the said net proceeds be insufficient to satisfy the said value and interest, the defendant shall not be bound for the deficiency.

Code, s. 485; 1871-2, c. 147, s. 13.

665. If plaintiff is feme covert, minor or insane. If the party by or for whom the land is claimed in the suit be a feme covert, minor, or insane, such value shall be deemed to be real estate, and be disposed of as the court may consider proper for the benefit of the persons interested therein.

Code, s. 486; 1871-2, c. 147, s. 14.

666. Defendant evicted, recovery of plaintiff. If the defendant, his heirs, or assigns shall, after the premises are so relinquished to him, be evicted thereof by force of any better title than that of the original plaintiff, the person so evicted may recover from such plaintiff or his representatives the amount so paid for the premises, as so much money had and received by such plaintiff in his life-time for the use of such persons, with lawful interest thereon from the time of such payment.

Code, s. 487; 1871-2, c. 147, s. 15.

667. Execution returned unsatisfied, order within three years for debtor to answer. When an execution against property of the judgment debtor, or any one of several debtors in the same judgment, issued to the sheriff of the county where he resides or has a place of business, or if he do not reside in the state, to the sheriff of the county where a judgment roll or a transcript of a justice's judgment is filed, is returned unsatisfied, in whole or in part, the judgment creditor at any time after such return made, and within three years from the time of issuing the execution, is entitled to an order from the court to which the execution is returned, or from the judge thereof, requiring such debtor to appear and answer concerning his property, before such court or judge, at a time and place specified in the order, within the county to which the execution was issued.

Code, s. 488, subsec. 1; C. C. P., s. 264; 1868-9, c. 95, s. 2.

668. Execution not returned, order on affidavit; proceedings. After the issuing of an execution against property, and upon proof by affidavit, of a party, his agent or attorney, to the satisfaction of the court, or a judge thereof, that any judgment debtor residing in the judicial district where such judge or officer resides has property which he unjustly refuses to apply toward the satisfaction of the judgment, such court or judge may, by an order, require the judgment debtor to appear at a specified time and place, to answer concerning the same; and such proceedings may thereupon be had for the application of the property of the judgment debtor towards the satisfaction of the judgment as are provided upon the return of an execution and the judgment creditor shall be entitled to the order of examination under this and under the preceding section, although the judgment debtor may have an equitable estate in land subject to the lien of the judgment, or may have choses in action, or other things of value unaffected by the lien of the judgment, and incapable of levy.

Code, s. 488, subsec. 2; C. C. P., s. 264; 1868-9, c. 95, s. 2.