cash value thereof at the time, exclusive of liens and incumbrances; which oath the sheriff is authorized to administer and attest, when taken and subscribed by the appraisers.

751. (739.) Purchaser's privilege as to liens-Proviso.-526, Where any property shall be sold subject to liens and incumbrances, the purchaser may pay the liens and incumbrances, and hold the property discharged from all claims of the execution defendant; or, he may hold the property subject to be redeemed by the execution defendant, his heirs or assigns, by paying to the purchaser, his heirs or assigns, the purchase-money, with interest. When redeemed, the purchaser shall have the growing crops, and shall not be accountable for rents and profits, but he shall account for waste: Provided, That nothing contained in this section shall deprive a party from the right to redeem when authorized by statute.

This section was not repealed by the general redemption law. Gatling v. Dunn, 52 Ind. 498.

When property is sold subject to liens, the rights of the lien-holder are not affected unless his lien is paid, and his subsequent obtaining title to the property does not satisfy his lien. Gatling v. Dunn, 52 Ind. 498.

If the incumbrances have been paid before sale, the purchaser can not be compelled to pay the amount thereof in addition to his bid. Gregg v. Strange, 3 Ind. 366.

752. (740.) Duty of sheriff as to unsold property.-527. When any property levied on remains unsold, it shall be the duty of the sheriff, when he returns the execution, to return the appraisement therewith, stating in his return the failure to sell and the cause of the failure. It is only when the property is not sold that appraisement should be returned with the execution. Thurston v. Barnes, 10 Ind. 289; Coan v. Elliott, 101 Ind. 275.

753. (741.) Lien of levy to continue-Limit-New writ.-528. The lien of the levy upon the property shall continue; and the clerk, when directed by the plaintiff, shall forthwith issue another execution reciting the return of the former execution, the levy and failure to sell, and directing the sheriff to satisfy the judgment out of the property unsold, if the same be sufficient; if not, then out of any other property of the debtor subject to execution; but such lien as to personal property shall continue only for thirty days (unless a second execution be issued thereon) from the time of said return, at which time it shall be released as to bona fide purchasers for value and as to the levies of writs on other judgments, and the levy shall, as between the parties, be deemed vacated; and as to real property, after six months, the levy of such writ shall be discharged.

If the return of the officer shows that an attempted sale was not completed, a vendi should issue. Dawson v. Jackson, 62 Ind. 171.

When a vendi should issue an ordinary execution can not be issued. McIver v. Ballard, 96 Ind. 76.

A vendi is a lien on all of the property of the debtor subject to execution. Durbin v. Haines, 99 Ind. 463.

If a vendi is not issued within thirty days, the lien upon personal property will be lost. Wheeler v. Haines, 114 Ind. 108.

754. (742.) Re-offer-Costs-Re-valuation.-529. Whenever any property levied upon remains unsold for want of buyers, the plaintiff may cause the same to be re-offered at any time before the return-day of the execution, at his costs, as often as he may direct; but in case of the sale of the property, the costs of such offer and sale shall be taxed against the defendant. Either party may have a re-valuation of the property, at his costs, after any offer to sell.

755. (743.) Fraud-Sale without appraisement.-530. Property conveyed by a debtor, with intent to hinder, delay, or defraud creditors, shall be sold without appraisement.

When a conveyance is adjudged fraudulent the property may be sold without appraisement on all judgments without a special order. Mugge v. Helgemeier, 81 Ind. 120. This section does not apply to judgments for the recovery of the value of property fraudulently conveyed. Whitehall v. Crawford, 37 Ind. 147.

756. (744.) Delivery-bond.-531. Any personal property taken in execution may be returned to the execution defendant by the sheriff, upon the delivery by the defendant to him of a written undertaking, payable to the execution plaintiff, with sufficient surety, to be approved by the sheriff, to the effect that the property shall be delivered to the sheriff at a time and place named in the undertaking, to be sold according to law, or for the payment to the sheriff of the appraised value thereof, or when the same has not been appraised, then of the fair value of the same.

In a suit upon a delivery bond made payable by mistake to the officer, the bond may be reformed so as to make the execution plaintiff the obligee therein. Bell v. Tanguy, 46 Ind. 49.

Defective delivery bonds are cured by statute. Koeniger v. Creed, 58 Ind. 554. Demand for the property is not necessary unless the property is required before the day named for delivery. Mitchell v. Merrill, 2 Blkf. 87; Hunter v. Brown, 68 Ind. 225. The debtor may waive the insertion of conditions in the bond. Patterson v. Brown, 1 Ind. 567; Paul v. Arnold, 12 Ind. 197.

Giving a delivery bond does not estop the debtor in exemption. ster, 15 Ind. 21.

Eltzroth v. Web

A bond given upon a second levy, the first being undisposed of, is a nullity. Miller v. Ashton, 7 Blkf. 29.

757. (745.) Appraisement, when pre-requisite.-532. Before the sheriff shall deliver any part of the property to the defendant, he shall cause it to be appraised in the manner prescribed by law, when an appraisement thereof is required; and the defendant may sell or dispose of the property, paying the officer the full appraised value thereof.

758. (746.) Non-delivery-Duty of sheriff.-533. In case of the non-delivery of the property according to the undertaking, it shall be the duty of the sheriff to levy upon and sell the same, or any other property of the defendant, as soon as practicable, at any time before the return-day of the execution.

759. (747.) Return of forfeiture.-534. Upon the forfeiture of the written undertaking, the officer shall forthwith return it, indorsed "forfeited," to the clerk's office, for the use of the plaintiff.

760. (748.) Action on bond-Damages.-535. Such undertaking shall be valid in law, and an action had thereon whenever the condition thereof is broken; and on recovery, the value of the property so taken, with damages not exceeding ten per cent. on the value, shall be assessed in favor of the plaintiff. But the recovery shall not exceed the amount due on the execution, and ten per cent. on the principal. As to the necessary averments in a complaint on the bond, see Strange v. Lowe, 8 Blkf. 243; Hunter v. Brown, 68 Ind. 225.

A joint action may be maintained upon a bond executed to different execution creditors whose writs have equal priority, against the same debtor. Koeniger v. Creed, 58 Ind. 554; Mandlove v. Lewis, 9 Ind. 194.

In such action, no more than enough to pay the execution, with ten per cent. damages, can be recovered. Hunter v. Brown, 68 Ind. 225.

It may be shown as a defense that the property belongs to a third person. Koeniger *. Creed, 58 Ind. 554.

Want of consideration may be pleaded in an action on the bond. Atkinson v. Starbuck, 7 Blkf. 420.

761. (749.) Execution without stay-Return in thirty days.—536. On judgment obtained on such written undertaking, execution shall issue forthwith, without stay, returnable in thirty days; and the sheriff shall not return any property to the execution defendant levied on thereby, except upon payment of the judgment.

762. (750.) Notice of sale of personalty.-542. Previous notice of the time and place of the sale of any personal property on execution shall be given for ten days successively, by posting up written. notices thereof in at least three of the most public places in the township where the sale is to be made.

A sale of personalty, on a notice of nine days, to the execution plaintiff, is void. Keen v. Preston, 24 Ind. 395.

763. (751.) Personalty, how sold.-543. Personal property shall not be sold unless the same shall be present and subject to the view of those attending the sale; and it shall be sold at public auction, in such lots and parcels as shall be calculated to bring the highest price. Personal property must be present and subject to view of bidders; its sale out of view is unauthorized. Gaskill v. Aldrich, 41 Ind. 338; Murphy v. Hill, 77 Ind. 129; Wright . Mack, 95 Ind. 332.

Personal property should be sold in such lots as is calculated to bring the best price. Wright e. Mack, 95 Ind. 332.

Personal property must be sold for cash, a sale on credit being void. McCormick v. Walter Wood Co., 72 Ind. 518.

The sale must be made at the place named in the notice of sale. Murphy v. Hill, 77 Ind. 129.

764. (752.) Real estate liable to judgment, etc.-600. The following real estate shall be liable to all judgments and attachments, and to be sold on execution against the debtor owning the same whose use the same is holden, viz.:

or for

First. All lands of the judgment debtor, whether in possession, remainder, or reversion.

Devised lands, after the title vests, are subject to sale under the execution, although the devisee is not entitled to possession. Wilson v. Rudd, 19 Ind. 101.

If a debtor has a conditional fee in lands, the same may be sold on execution. Greer v. Wilson, 108 Ind. 322.

Second. Lands fraudulently conveyed with intent to delay or defraud creditors.

Lands conveyed to defraud creditors may be sold on execution before the conveyance is set aside, but in order to protect his title the purchaser must show facts to justify setting such conveyance aside. Eve v. Louis, 91 Ind. 457; Pennington v. Flock, 93 Ind. 378; Hanna v. Aebker, 84 Ind. 411.

Lands fraudulently conveyed may be attached; but it must be shown that the purchaser was a party to the fraud. Johnston v. Field, 62 Ind. 377.

Third. All rights of redeeming mortgaged lands; also, all lands held by virtue of any land-office certificate.

Judgments are liens on the equity of redemption of mortgaged lands, and such right may be sold on execution. Julian v. Beal, 26 Ind. 220.

A certificate of entry of swamp lands vests the legal title in the purchaser. Reed r. Hamilton, 18 Ind. 476.

Fourth. Lands, or any estate or interest therein, holden by any one in trust for or to the use of another.

Judgments become liens on lands held in trust for the debtor, in the same order as upon other lands. Maxwell v. Vaught, 96 Ind. 136.

Fifth. All chattels real of the judgment debtor.

Equitable title in lands are not subject to sale on execution. Dickerson v. Nelson, 4 Ind. 160; Jeffries v. Sherburn, 21 Ind. 112; Terrell ". Prestel, 68 Ind. 86.

Property purchased with pension money is liable to sale on execution. Cavanaugh v. Smith, 84 Ind. 380.

765. (753.) Rents and profits first offered.-537. The estate or interest of the judgment debtor in any real estate shall not be sold on execution until the rents and profits thereof, for a term not exceeding seven years, shall have been first offered for sale at public auction; but if the same shall not sell for a sum sufficient to satisfy the execution, then the estate or interest of the judgment debtor shall be sold by virtue of the execution.

If no bid is made for the rents for seven years, an offer for a shorter term need not be made. Thurston v. Barnes, 10 Ind. 289.

If no bid is made for the rents and profits, then the fee simple may be sold. Piel v. Watson, 44 Ind. 447.

It is only necessary to offer the rents and profits of each parcel before selling such parcel. Adler v. Sewell, 29 Ind. 598; Nix v. Williams, 110 Ind. 234; Carpenter v. Russell, 129 Ind. 571.

On a sale in favor of a redemptioner of lands, the rents and profits can not be sold. Taylor v. Morgan, 95 Ind. 456.

766. (754.) How valued.-538. Rents and profits may be sold as other property, the appraisers setting down the value of each year separately.

When appraisement is required, rents and profits must be appraised; and an offer to sell them without is not a valid offer, and will vitiate the subsequent sale of a fee. Davis v. Campbell, 12 Ind. 192; Railway Co. v. Bradley, 15 Ind. 23.

767. (755.) Manner of sale-Lease by sheriff.-539. So many years, not exceeding such term of seven, shall be sold as will satisfy the execution, and no more; and the sheriff shall execute a lease to the purchaser for the term sold.

When rents and profits are sold a redemption lies from such sale as in other cases. Ragsdale v. Mathes, 52 Ind. 495.

768. (756.) Real estate, how sold.-540. Real estate, including chattels real, taken by virtue of any execution, shall be sold at public auction at the door of the court-house of the county in which the same is situated; and if the estate shall consist of several lots, tracts and parcels, each shall be offered separately; and no more of any real estate shall be offered for sale than shall be necessary to satisfy the execution, unless the same is not susceptible of division; except that when real estate which is not susceptible of division is ordered to be sold on any decree or judgment, and the same is traversed by the line between two counties, it may be advertised and sold in either county. Each tract levied on must be sold at the door of the court-house in the county where situate. Holmes v. Taylor, 48 Ind. 169.

A sale made within hearing of persons at the door of the court-house is a compliance with the statute. Patterson v. Reynolds, 19 Ind. 148.

If lands are divisible, no more should be offered than is necessary to satisfy the execution; but if entire tract is necessary to satisfy the execution, the whole may be offered at once. Reed v. Diven, 7 Ind. 189.

Each tract must be offered separately although it is necessary to sell all the lands Brake v. Brownlee, 91 Ind. 359.

levied on.

Each separate tract should be offered separately, and when so offered the whole land may be sold without offering a larger subdivision. Voss v. Johnson, 41 Ind. 19; Weaver v. Guyer, 59 Ind. 195; Nesbit v. Hanway, 87 Ind. 400; Nix v. Williams, 110 Ind. 234. If no bid is received for a parcel offered, a smaller parcel need not be offered before selling the entire tract. Sowle v. Champion, 16 Ind. 165.

The sale of an entire town lot may be made, although a part might have been sold. West v. Cooper, 19 Ind. 1. See Catlett v. Gilbert, 23 Ind. 614.

When lands levied upon are not divided into parcels, and its divisibility is a matter of opinion, the conclusion of the officer is conclusive. Wright v. Yetts, 30 Ind. 185; Jones r. Kokomo Assn., 77 Ind. 340; Nelson v. Bronnenburg, 81 Ind. 193; Lynch v. Reese, 97 Ind. 360.

If a reasonable bid is made for a parcel offered for sale, it should be accepted, although not sufficient to satisfy the execution. Gregory v. Purdue, 32 Ind. 453; Brake r. Brownlee, 91 Ind. 359.

The officer has a discretion in accepting a bid for one parcel when such bid will not satisfy the execution. Barnes v. Zoercher, 127 Ind. 105.

If the debtor requests the lands to be sold in a body, he can not complain because it is so sold. Joyce v. Bank, 62 Ind. 188.

The failure of an officer to offer lands in parcels when he should do so renders a sale voidable. Weaver v. Guyer, 59 Ind. 195; Jones v. Kokomo Ass'n, 77 Ind. 340; Pattone. Stewart, 19 Ind. 233.

Such sales have been held void in the following cases: Tyler v. Wilkerson, 27 Ind.