The redemptioner, at a sale under this section, is a forced bidder for the amount Taylor v. Morgan, 95 Ind. 456. paid to redeem, with interest and costs. The rents and profits are not to be sold. Taylor v. Morgan, 95 Ind. 456. The purchaser obtains the same title as if the deed had been made under the sale from which the lands were redeemed. Patterson v. Rosenthal, 117 Ind. 83. 786. (774.) Manner of redemption by lien-holder whose lien is recorded.-9. Any person having a lien, otherwise than by judgment, upon the real estate, or any parcel or parcels thereof sold in one body, may, at any time within one year from said sale, and after he shall have had his lien duly recorded where, by law, the recording thereof is provided for, redeem the same from the purchaser at said sale, or from any prior redemptioner, and redemption thereof may be made from him upon the same terms and conditions as herein before required in cases of redemption by judgment creditors; and if, at the expiration of one year from the sale on execution, no one shall have redeemed from him, and his lien remains unforeclosed, he shall retain a lien on the real estate so redeemed by him, as of the date of the judgment on which said sale was made, and may enforce the same in the suit to foreclose or enforce his lien, or by an independent action; and any sale of said real estate in pursuance thereof shall be absolute, and the purchaser immediately entitled to a conveyance, having the same effect as if his lien, at the time he redeemed, had been in judg ment. A mortgagee, whose mortgage is executed after the sale, and is duly recorded, may redeem the lands sold within the year. Hervey v. Krost, 116 Ind. 268. 787. (775.) All redemption entries to be indexed by clerk.—10. All entries in relation to the sale and redemption of real estate, as provided in this act, in the "Lis Pendens Record," shall be indexed therein by the clerk in the names of the judgment plaintiffs upon whose execution the real estate was sold, against the defendant owning the same, and also in the name of said defendant at the suit of said plaintiffs. 788. (776.) Pay of sheriff and other officers.-11. The officers performing the services herein required shall charge and receive the like compensation as for similar services in other cases; but the sheriff, or other officer, making the second or subsequent sale shall be entitled to a commission, only, on the excess of the redemption-money. 789. (777.) Purchaser may recover for waste and injury to premises.-12. The person receiving a conveyance from the sheriff, pursuant to the provisions of this act, shall be entitled to recover for any waste or injury to the premises conveyed, committed after the original sale on execution. 790. (778.) Act not applicable to former sales-Existing liens.— 13. The provisions of this act shall not apply to any sale on execution or decretal order made before the taking effect of this act; but all liens and rights of redemption and re-sale, existing at the passage of this act and growing out of any such sale, may be enforced in like manner as if this act had not been passed, and in accordance with the statute in force when such sale was made. But all sales made after the passage of this act, and all redemptions therefrom, shall be governed by the provisions of this act. It was held that the act of 1881, in so far as it prevented a recovery of rents and profits when lands were not redeemed, could not apply to contracts made prior to the passage of the act. Travellers' Ins. Co. v. Brouse, 83 Ind. 62. But see on the contrary, Davis v. Rupe, 114 Ind. 588. For a general review of the various redemption laws, see Bryson v. McCreary, 102 Ind. 1; Edwards v. Johnson, 105 Ind. 594. [1881 S., p. 240. In force September 19, 1881.] 791. (779.) Receipt of sheriff.-488. The sheriff receiving an execution shall indorse the year, month, day and hour when he received it. An execution is a lien upon chattels from the time of its delivery to the officer, though he fails to make the proper indorsement. Johnson v. McLane, 7 Blkf. 501. 792. (780.) Property of principal to be first exhausted.-489. If it appear upon the face of an execution, or by the indorsement of the clerk, that of those against whom it issued any one is surety for another, the property of the principal shall be first sold, unless the surety shall direct otherwise. It is only when the record shows a trial of the question of suretyship that an order can be made that the property of the principal shall be first sold. Rooker v. Wise, 14 Ind. 276; Bliss v. Douch, 110 Ind. 296. If all the defendants are sureties, no order can be made that the property of one shall be first sold. Schooley v. Fletcher, 45 Ind. 86. If it appears by the judgment and execution that one defendant is surety, he may prevent the sale of his property until that of the principal has been sold. Johnson v. Harris, 69 Ind. 305. 793. (781.) Return by mail-Money excepted.-552. When any execution shall be issued to any county other than the one in which the judgment is rendered, return may be made by mail; but money can not be thus sent, except by the direction of the party entitled thereto or his attorney. 794. (782.) Sheriff to pay at once.-554. When the sheriff has collected any money on execution, he shall pay over the same at the earliest opportunity, unless injoined. 795. (783.) Neglect to levy-Liability of sheriff.-555. If any sheriff shall neglect or refuse to levy upon or sell any property justly liable to execution when the same might have been done, he shall be amerced to the value of such property, not to exceed the amount necessary to satisfy the execution. All the property of a defendant is subject to levy until a claim of exemption is made, Terrell v. State, ex rel., 66 Ind. 570. But, see Barnard v. Brown, 112 Ind. 53; Ray v. Yarnell, 118 Ind. 112. It is a good defense to an action for failure to levy to show that the property was not liable to sale. Terrell v. State, ex rel., 66 Ind. 570; State, ex rel., v. Neff, 74 Ind. 146. Unless special damages are shown, only nominal damages can be recovered for fail ure to levy. State, ex rel., v. Dixon, 80 Ind. 150. A complaint for failure to levy should aver that the officer was not directed by the plaintiff not to levy. State, ex rel., v. Emmons, 88 Ind. 279. The complaint should aver that property subject to levy was within the jurisdiction of the officer. State, ex rel., v. White, 88 Ind. 587. An officer is not liable to strangers to the writ for a failure to levy the execution. State, ex rel., v. White, 88 Ind. 587. An answer showing a failure to find property after a demand and diligent search is sufficient. State, ex rel., v. Neff, 74 Ind. 146. 796. (784.) Neglect to return-Liability of sheriff.-556. If any sheriff shall neglect or refuse to return any execution as required by law, or shall make a false return thereon, he shall be amerced in such amount as he might and should have levied by virtue of the execution. Jnless special damages are shown, only nominal damages can be recovered for failure to return an execution. State, ex rel., v. Dixon, 80 Ind. 150. Insolvency of the execution debtor may be shown. Collier v. State, ex rel., 10 Ind. 58. Where a sheriff has become liable hereunder, and has paid the execution plaintiff the amount recoverable by him, the judgment remains in force for the use of the officer against the debtor. Burbank v. Slinkard, 53 Ind. 493. 797. (785.) Neglect to pay over-Liability of sheriff.-557. If any sheriff shall neglect or refuse, on demand, to pay over any money collected on execution to the execution creditor, his agent or attorney, or to the execution debtor, when he is entitled thereto, he shall be amerced to the amount thus withheld. A sheriff's return as to moneys collected upon execution is conclusive upon the sureties on his bond. Bagot v. State, 33 Ind. 262. 798. (786.) Further liability of sheriff.-558. In all cases specified in the last three sections, the plaintiff shall, in addition to the amercement, recover of the officer legal interest and damages, not exceeding ten per cent. on the principal sum recovered. 799. (787.) Proceedings against delinquent sheriff.-559. Such recovery may be had by motion against the officer, in the proper court, ten days' notice thereof being given, or by action on the bond of the sheriff. The proceedings in this section contemplated may be commenced immediately upon the default of the sheriff, either before or after the return day of the execution. 800. (788.) Return of execution.-560. Every execution shall be returned forthwith, upon being satisfied by the collection of the money; also, upon order of the plaintiff or his agent indorsed thereon. When the return day of an execution falls on Sunday, it shall be returned on the following Monday. If an execution is levied before return day, a sale may be made afterward. Lowry v. Reed, 89 Ind. 442; Rose v. Ingram, 98 Ind. 276. 801. (789.) When plaintiff shall give refunding bond.-561. When the sheriff has sold the property of a non-resident or other person upon an execution issued on a judgment recovered against him in a case where publication is provided for, and no personal notice of the pendency of the action was given to such defendant, the plaintiff shall not be entitled to receive any of the proceeds of such sale until he has filed in the clerk's office a written undertaking, with surety to be approved by the clerk, to the effect that he will refund the money about to be received by him, or so much thereof as shall be necessary, if the judgment shall afterward be annulled or set aside, and the defendant shall show that the plaintiff's claim is unfounded in whole or in part. But surety to refund shall not be required in cases of attachment. 802. (790.) Effect of death of defendant.-562. The death of a defendant, after the execution is placed in the hands of the sheriff to be executed, shall not affect his proceedings thereon, except that the amount of property allowed absolutely to the widow of the decedent shall be exempt from levy and sale under such execution. If an execution be levied upon the lands of the defendant, and he die thereafter, it does not prevent the full execution of the writ by sale. Doe v. Heath, 7 Blkf. 154; Murray v. Buchanan, 7 Blkf. 549; Doe v. Hayes, 4 Ind. 117. Decrees of foreclose of mortgages may be issued, and sales had after the death of the defendant. Kellogg v. Tout, 65 Ind. 146. The death of an execution debtor after levy, does not affect the right of his widow to claim the property as a portion of her statutory allowance. Dixon v. Aldrich, 127 Ind. 296. An execution issued after the death of the defendant is a nullity. Doe v. Harter, 1 Ind. 427; Whitehead v. Cummins, 2 Ind. 58; Louden v. Day, 6 Ind. 7. 803. (791.) Against the body.-563. No execution shall be issued upon any judgment against the body of any execution debtor, except as hereinafter provided. 804. (792.) Writ served by arrest and commitment.-564. Before any such execution shall issue, the plaintiff shall file with the clerk an affidavit, charging the debtor with fraudulently concealing, removing, conveying, or transferring his property subject to execution, with intent to defraud and delay the plaintiff, or charging that the debtor has money, rights, credits, or effects, with which the judgment, or some part thereof, might be paid, and which he fraudulently withholds or conceals with a view to delay or defraud the creditor. A ca. sa. can only issue when it affirmatively appears that the debtor has money or property subject to execution, which he fraudulently conceals or refuses to give up. Wendover v. Tucker, 4 Ind. 381. It must appear by affidavit that the judgment can not be collected by ordinary execution, before an execution will issue against the body. Baker v. State, ex rel., 109 Ind. 47. A proceeding to procure an execution against the body is a civil action. Baker v. State, ex rel., 109 Ind. 47. 805. (793.) Finding must designate the property.-565. The affidavit need not designate specifically any property, moneys, or effects, fraudulently removed, transferred, concealed, conveyed, or withheld by the debtor; but the jury or court, in determining the matters in issue between the parties, if the finding be for the creditor, shall designate, in the finding, the moneys, effects, property, debts, or things in action, subject to execution, which have been thus removed, concealed, transferred, conveyed, or withheld, and the value thereof. 806. (794.) Notice to debtor.-566. Upon the filing of the affidavit, the clerk shall issue a notice, requiring the debtor to appear at the next term of the court, and show cause why such execution should not issue against him. 807. (795.) Hearing, when had.-567. After ten days' notice, or after the return of two notices of "not found," the court shall hear and determine the matters and things contained in the affidavit. 808. (796.) Hearing in absence of debtor.-568. If the debtor shall fail to appear and show cause, the court may hear and determine the same in the absence of the debtor; or a jury for that purpose may be impaneled, if desired by the creditor. 809. (797.) Issue on trial.-569. If the debtor appear and plead to the affidavit any sufficient matter to bar the issuing of the execution, and an issue be taken thereon, the same may be tried by the court or a jury, as in other cases. 810. (798.) Issue against debtor-Execution.-570. If the issue be determined against the debtor, the court, unless good cause be shown, shall forthwith order an execution against his body, subject to the rules and restrictions of the next two sections. 811. (799.) If property surrendered, no execution.-571. If the debtor shall surrender such moneys, effects, property, debts, or things in action, to the use and for the benefit of the creditor, or pay the value thereof, as found by the court or jury, no execution shall, for that cause, be issued against his body. 812. (800.) On failure to surrender, execution issues.-572. If the debtor fail to surrender or pay, as provided in the preceding section, upon the return of such finding, an execution shall forthwith issue against his body upon the judgment. 813. (801.) Writ served by arrest and commitment.-573. The execution against the body shall be served by arresting the defendant, and, unless discharged by due course of law, committing him to the common jail of the county. 814. (802.) Affidavit for arrest pending proceedings.-574. If the creditor show in his affidavit that the debtor has not been held to special bail in the original action; or, having been thus held, has been surrendered by his bail; and that he has reason to fear, and does fear, that such debtor will leave the state before the trial and determination of the matters alleged in the affidavit, an order of arrest and bail shall issue against the debtor, and be served and returned, as in other cases. 815. (803.) Recognizance.-575. The debtor, when arrested on the order of arrest, may enter into a recognizance, with sufficient surety, for his appearance at the trial of such proceedings, and for the surrender of his body if an execution be awarded. 816. (804.) Its form, effect, and return.-576. The sheriff may take the recognizance in the form and by the rules provided in other |