67

levy on realty without making a personal demand on the debtor, or notifying him that he holds the execution, and a search for chattels may not be necessary, if the sheriff knows there are none." An officer who levies an execution upon personal property acquires a special lien thereon, dependent on possession, and, if he surrenders possession of the property levied on to a senior lienholder, the lien of the execution is lost.68

Where the execution debtor owned a field of standing corn, and the officer went to the neighborhood of the corn and found the wife, against whom the execution also ran, and read it to her, and told her he intended to take the corn, and went to the cornfield with a witness and posted a notice that the corn was taken on execution and was in his possession, it was a sufficient levy.

69

"When any writ shall issue, directing the sale of property previously taken in execution, the officer issuing said writ shall at the request of the person entitled to the benefit thereof, his agent or attorney, add thereto a command to the officer to whom such writ shall be directed, that if the property remaining in his hands. not sold shall, in his opinion, be insufficient to satisfy the judgment, he shall levy the same upon lands and tenements, goods and chattels, or either, as the law shall permit, being the property of the judgment debtor, sufficient to satisfy the debt." 70

§ 1619. Advance of printer's fees

"The officer who levies upon goods and chattels, or lands and tenements, or who is charged with the duty of selling the same by virtue of any writ of execution, may refuse to publish a notice of the sale thereof by advertisement in a newspaper until the party for

67 Collins v. Ritchie, 2 P. 623, 31 Kan. 371.

An officer seized personal property under an order of attachment, and afterwards, while the property was in his custody, an execution, based on a judgment against the same defendant, was placed in his hands, on which he indorsed the time of receiving the same. Later he returned the execution, with an indorsement that he found no property liable to satisfy the judgment. Held, that the receipt of the execution and the indorsement made thereon did not operate as a constructive levy of the execution on the property already in the custody of the officer. Bank of Santa Fé v. Haskell County Bank, 53 P. 132, 59 Kan. 354.

68 Moore v. Calvert, 58 P. 627, 8 Okl. 358. 69 Moore v. Calvert, 58 P. 627, 8 Okl. 358. 70 Rev. Laws 1910, § 5160.

whose benefit such execution issued, his agent or attorney, shall advance to such officer so much money as will be sufficient to discharge the fees of the printer for publishing such notice.""1

"Before any officer shall be excused from giving the notification mentioned in the last section, he shall demand of the party for whose benefit the execution was issued, his agent or attorney, provided either of them reside in the county, the fees in said section. specified." 72

§ 1620. Appraisement and return

"If execution be levied upon lands and tenements, the officer levying such execution shall call an inquest of three disinterested householders, who shall be resident within the county where the lands taken in execution are situate, and administer to them an oath, impartially to appraise the property so levied on, upon actual view; and such householders shall forthwith return to said officer, under their hands, an estimate of the real value of said property." "3 "The officer receiving such return shall forthwith deposit a copy thereof with the clerk of the court from which the writ issued, and advertise and sell such property, agreeably to the provisions of this article." 74

73

75

Sale for fair value does not supply want of appraisement." Where the judgment on which an execution is based is invalid, and insufficient to support a confirmation of sale, an attempted appraisement is also invalid.70

Where execution is levied on mortgaged land, the appraisers should determine and return the value of the mortgage debtor's interest."

It is the duty of an officer levying on real property under an execution, in all cases where the appraisement is not waived, to deposit forthwith a copy of the return of the appraisement with the clerk of court.78

71 Rev. Laws 1910, § 5169. 72 Rev. Laws 1910, § 5170.

73 Rev. Laws 1910, § 5161.

74 Rev. Laws 1910, § 5163.

75 Hancock v. Youree et al., 25 Okl. 460, 106 P. 841.

76 Alexander v. American Nat. Bank, 54 Okl. 345, 153 P. 130.

77 Alexander v. American National Bank, 54 Okl. 345, 153 P. 130, 78 Jones v. Carr, 21 P. 258, 41 Kan. 329.

Under the statute relating to appraisement of lands proposed to be sold under execution, the appraisement must be made upon actual view had subsequent to the time the appraisers are called and sworn.79

"If the property of any clerk, sheriff, coroner, justice of the peace, constable or any collector of state, county, town or township tax, shall be levied on for, or on account of, any moneys that now are, or may hereafter be, by them collected or received in their official capacity, the property so levied on shall be sold without valuation." 80

§ 1622. Excessive levy

"If, upon such return, as aforesaid, it appear, by the inquisition, that two-thirds of the appraised value of said lands and tenements, so levied upon is sufficient to satisfy the execution, with costs, the judgment on which such execution issued shall not operate as a lien on the residue of the debtor's estate, to the prejudice of any other judgment creditor; but no such property shall be sold for less than two-thirds of the value returned in the inquest; and nothing in this section contained shall, in any wise, extend to affect the sale of lands by the State, but all lands, the property of individuals indebted to the State for any debt or taxes, or in any other manner, shall be sold without valuation, for the discharge of such debt or taxes, agreeably to the laws in such cases made and provided." 81

A levy upon more property than is required to satisfy the execution, and which is not grossly excessive, will not avoid the writ. The proper remedy in such a case is to move for a release of a portion of the property seized.82

§ 1623. Appraisement waived

.

"If the words 'appraisement waived,' or other words of similar import, shall be inserted in any deed, mortgage, bond, note, bill or written contract, any court rendering judgment thereon shall

79 Alfred et al. v. Bank of Hazelton, 48 Kan. 124, 29 P. 471.

80 Rev. Laws 1910, § 5165.

81 Rev. Laws 1910, § 5164.

82 Bogle v. Bloom, 13 P. 793, 36 Kan. 512.

order as a part of the judgment that the same, and any process issued thereon, shall be enforced, and that lands and tenements may be sold thereunder without appraisement; and such judgment, and any process issued thereon, shall be enforced, and sales of land and tenements made thereunder, without any appraisement or valuation. being made of the property to be sold: Provided, that no order of sale or execution shall be issued upon such judgment until the expiration of six months from the time of the rendition of said judgment."

983

§ 1624. Mortgaged chattels

The statute provides that mortgaged personal property may be taken under attachment or execution at the suit of a creditor of a mortgagor; and that before it can be so taken the officer must tender to the mortgagee the amount of the mortgage debt and interest, or deposit the amount thereof with the county treasurer. On failure of the sheriff in making a levy on mortgaged chattels to follow the provisions of the statute, the levy may be set aside, or he may be made to respond in damages to any one injured by his neglect. 84

§ 1625. Corporate stock

When any order of attachment, or execution, or order of sale shall be issued against any person being the owner of any shares of stock in any corporation or company * * * or for whom or to whose use any shares of stock in any corporation or company are held by any person other than such defendant, it shall be the duty of the president, cashier, secretary or chief clerk of such corporation or company, upon the request of the officer having such execution or order, to furnish a certificate under his hand, stating the number of rights or shares which the defendant holds or which are held in trust for such defendant, or to his use in the stock of such corporation or company."

" 85

"Any officer upon obtaining information in the manner provided in the last section, or otherwise, that any defendant in any order of attachment held by him or any person against whom he holds

83 Rev. Laws 1910, § 5162.

84 D. M. Osborne & Co. v. Hughey, 76 P. 146, 14 Okl. 29,

Rev. Laws 1910, §§ 4040, 4041.

85 Sess. Laws 1919, c. 89, § 2.

an execution or order of sale, owns or holds any rights or shares in the stock of any corporation or company, * * * or that such rights or shares owned or held by any other person in trust for or to the use of such defendant, may make a levy of such order or attachment, execution or order of sale, on such rights or shares by leaving a true copy of such writ with the president, secretary, cashier or chief clerk of such corporation or company, and if there be no such officer, then with some other officer of such corporation or company, with a certificate of the officer making the levy setting forth that he levies upon and takes in attachment, or upon such execution or order of sale, such rights or shares to satisfy such attachment, execution or order of sale, or if the certificates of such shares are held by any person within his' county, whether in a domestic or foreign corporation, the same may be likewise taken in attachment, execution or upon such order of sale, by leaving a true copy of such order of attachment, execution or order of sale, with the person so holding the certificates of such shares in the same manner as in the service of a summons with a certificate of the officer making the levy, setting forth that he levies upon and takes in attachment or upon such execution or order of sale, as the case may be, such rights or shares to satisfy the same.'

86

"Rights or shares in the stock of any corporation or company levied upon by virtue of any writ of attachment, shall be held subject to the judgment rendered in the action in which such writ is issued and if the plaintiff recover judgment, such rights or shares shall be sold in like manner as personal property is provided to be sold upon execution to satisfy such judgment, and if taken upon execution or order of sale, they shall be sold in like manner, and if the certificate of the shares of stock is within the jurisdiction of the court, it may compel delivery thereof by the person having custody and control thereof, by order duly served upon such person to show cause why such delivery should not be made, and if no legal cause is shown why such delivery should not be made, the delivery shall be compelled by proceedings as for contempt."

86 Sess. Laws 1919, c. 89, § 3.

87 Sess. Laws 1919, c. 89, § 1.

"87

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