sisting judgment in that case, before he can attack a transfer of the property levied on as made in fraud of creditors.2

An execution issued on a dormant judgment is void.3

"In special cases not hereinbefore provided for, the execution shall conform to the judgment or order of the court. When a judgment for any specified amount, and also for the sale of specific real or personal property, shall have been rendered, and an amount sufficient to satisfy the amount of the debt or damages and costs, be not made from the sale of property specified, an execution may issue for the balance, as in other cases."

An execution may be issued, and a valid sale of land be made thereunder, after the record of the judgment has been destroyed by fire, and before it has been established by decree of court."

"When the judgment is not for the recovery of money or real property, the same may be enforced by attachment, by the court rendering judgment, upon motion made, or by a rule of the court upon the defendant; but in either case, notice of the motion or a service of a copy of the rule shall be made on the defendant, a reasonable time before the order of attachment is made." •

$1583. Contribution

"When property, liable to an execution against several persons, is sold thereon, and more than a due proportion of the judgment is laid upon the property of one of them, or one of them pays, without a sale, more than his proportion, he may, regardless of the nature of the demand upon which the judgment was rendered, compel contribution from the others; and when a judgment is against several, and is upon an obligation of one of them, as security for another, and the surety pays the amount, or any part thereof, either by sale of his property or before sale, he may compel repayment from the principal; in such case, the person so paying or contributing, is entitled to the benefit of the judgment, to enforce contribution or

2 Cockrell v. Schmitt, 94 P. 521, 20 Okl. 207, 129 Am. St. Rep. 737.

* Denny v. Ross, 79 P. 502, 70 Kan. 720.

4 Rev. Laws 1910, § 5216.

Davidson v. Beers, 25 P. 859, 45 Kan. 365.

Rev. Laws 1910, § 5215.

(1507)

(1507)

repayment, if within ten days after his payment he file with the clerk of court where the judgment was rendered, notice of his payment and claim to contribution or repayment. Upon a filing of such notice, the clerk shall make an entry thereof in the margin of the docket."?

§ 1584. Principal and surety

"In all cases where judgment is rendered in any court of record within this state, upon any instrument of writing in which two or more persons are jointly and severally bound, and it shall be made to appear to the court, by parol or other testimony, that one or more of said persons so bound, signed the same as surety or bail, for his or their codefendant, it shall be the duty of the clerk of said court, in recording the judgment thereon to certify which of the defendants is principal debtor, and which are sureties or bail. And the clerk of the court aforesaid shall issue execution on such judg ment, commanding the sheriff or other officer to cause the money to be made of the goods and chattels, lands and tenements, of the principal debtor; but for want of sufficient property of the principal debtor to make the same, that he cause the same to be made of the goods and chattels, lands and tenements, of the surety or bail. In all cases, the property, both personal and real, of the principal debtor, within the jurisdiction of the court, shall be exhausted before any of the property of the surety or bail shall be taken in execution." 8

§ 1585. Several executions

"In all cases where two or more executions shall be put into the hands of any sheriff or other officer, and it shall be necessary to levy on real estate to satisfy the same, and either of the judgment creditors, in whose favor one or more of said executions are issued, shall require the sheriff or other officer to levy said executions, or so many thereof as may be required, on separate parcels of the real property of the judgment debtor or debtors, giving to the officer

7 Rev. Laws 1910, § 5188.

Where a judgment is rendered on note against two sureties, court cannot direct levy of execution against one alone without compliance with this statute and then only to compel contribution. Paul v. First State Bank of Pauls Valley, 57 Okl. 430, 157 P. 319.

8 Rev. Laws 1910, § 5179.

making the levy on behalf of the creditors, whose execution may, by the provisions of this article, be entitled to a preference, the choice of such part of the real property of the judgment debtor or debtors, as will be sufficient, at two-thirds of the appraised value to satisfy the same; and in all cases where two or more executions, which are entitled to no preference over each other, are put in the hands of the same officer, it shall be the duty of the officer, when required, to levy the same on separate parcels of the real property of the judgment debtor or debtors, when, in the opinion of the appraisers, the same may be divided without material injury; and if the real property of said debtors will not be sufficient, at two-thirds of its appraised value, to satisfy all the executions chargeable thereon, such part of the same shall be levied on to satisfy each execution, as will bear the same proportion in value to the whole, as the amount due to the execution bears to the amount of all the executions chargeable thereon, as near as may be, according to the appraised value of each separate parcel of said real property."

1590.

Corporation stock-Attachment and execution.

1591. Corporate franchises.

1592. Particular estates.

1593. Equitable interests.

1594. Property in custodia legis.

1586. In general

"Lands, tenements, goods and chattels, not exempt by law, shall be subject to the payment of debts, and shall be liable to be taken on execution and sold, as hereinafter provided."

"9 10

A personal judgment for material furnished will authorize the levy of an execution on the property improved by use of the material, provided no superior interest of a third party has intervened.11

• Rev. Laws 1910, § 5173.

10 Rev. Laws 1910, § 5151.

11 South Texas Lumber Co. v. Epps, 48 Okl. 372, 150 P. 164.

§ 1587. Interests subject

"When a judgment debtor has not personal or real property, subject to levy on execution, sufficient to satisfy the judgment, any equitable interest which he may have in real estate, as mortgagor, mortgagee, or otherwise, or any interest he may have in any banking, turnpike, bridge or other joint stock company, or any interest he may have in any money, contracts, claims or choses in action. due or to become due to him, or in any judgment or decree, or any money, goods or effects which he may have in the possession of any person, body politic or corporate, shall be subject to the payment of such judgment, by action, or as hereinafter prescribed." "

§ 1588. Crops

12

Annual crops, sown by the owner of the soil, are, while growing, personal property, subject to levy and sale on execution for his debts.18

§ 1589. Movable property of public service corporation

Under the express provisions of the Constitution, all movable property of any public service corporation, including street railroads, is personal property, subject to execution and sale as such.1 § 1590. Corporate stock-Attachment and execution

"The rights or shares which any person may have in the stock of any corporation or company, or which may be held by any person in trust for or to the use of another, together with the interest and profits thereon, and including also shares or interests in any foreign corporation authorized to and doing business in this state and conducting its principal business therein, may be attached and if judg ment be recovered, may be sold to satisfy the judgment, or the same may be taken upon execution or order of sale." 15

§ 1591. Corporate franchises

"For the satisfaction of any judgment against a corporation authorized to receive tolls, its franchise and all the rights and privileges thereof may be levied upon and sold under execution, in the

12 Rev. Laws 1910, § 5189.

18 Voils v. Battin, 50 P. 940, 6 Kan. App. 742.

14 Const. Okl. art. 9, § 7; Oklahoma Ry. Co. v. Severns Paving Co. (Okl.) 170 P. 216, 10 A. L. R. 157, Id., 170 P. 220.

15 Sess. Laws 1919, c. 89, § 1.

same manner and with the same effect as any other property, but without any exemption." 16

§ 1592. Particular estates

Where power and discretion to terminate a life estate is vested in the beneficiary, this power is not property which can be subjected to forced sale on execution.17

§ 1593. Equitable interests

"If it shall appear that the judgment debtor has any equitable interest in real estate in the county in which proceedings are had, as mortgagor or mortgagee, or otherwise, and the interest of said debtor can be ascertained as between himself and the person or persons holding the legal estate, or the person or persons having a lien on or interest in the same, without controversy as to the interest of such person or persons holding such legal estate or interest therein, or lien on the same, the receiver may be ordered to sell and convey such real estate, or the debtor's interest therein. Such sale shall be conducted in all respects in the same manner as is provided by this code for the sale of real estate upon execution; and the proceedings of the sale shall, before the execution of the deed, be approved by the court in which the judgment was rendered, or the transcript has been filed as aforesaid, as in case of sale upon execution." 18

Land held by equitable title may be levied on and sold by virtue of a general execution.19

When the mortgagee has sold enough of the property to satisfy the debt and expenses of the sale, the residue becomes subject to seizure upon execution against the mortgagor, and the mortgagee cannot withhold it from an officer upon the ground that he has agreed with the mortgagor to continue in possession of the property and to sell it, and out of the proceeds of the sale to pay orders drawn upon him in favor of the mortgagor's creditors, and that he has in writing accepted and agreed to pay such orders.20 But personal property in possession of a chattel mortgagee, who in good

18 Rev. Laws 1910, § 1353.

17 Ryan v. Cullen, 150 P. 597, 96 Kan. 284.

18 Rev. Laws 1910, § 5201.

19 Poole v. French, 80 P. 997, 71 Kan. 391.

20 Johnson v. State Bank of Seneca, 52 P. 860, 59 Kan. 250.