Injunction will lie to enjoin an execution on a dormant judgment." Where real property is levied on under an execution against another, the owner's privilege to move in the case in which the execution was issued to release the property from such levy is not an adequate remedy at law, so as to cut off the right he would otherwise have to enjoin the sale of the property. The judgment creditor is not a necessary party to an action to enjoin a sheriff from selling a third person's property under execution.9 Where a judgment debtor sues to restrain the sale of lands seized in execution on the ground that it is not liable, his co-judgment debtors are not necessary parties to the action.1 10 In an action to enjoin the execution of a money judgment which is void for want of any service, the plaintiff need not plead and prove a meritorious defense to the action in which the judgment was rendered, but it is sufficient if he shows that he is not simply delaying justice by compelling the adverse party to resort to regular procedure.11 The fact that a sheriff in a notice of sale of real estate on execution fails to describe with sufficient definiteness the property to be sold is no ground for an action by the judgment defendant to enjoin the sale.12 Injunction will not lie to prevent the levy of an execution on personalty, where the judgment on which execution is issued is admitted to be valid and enforceable.13 A motion to quash an execution was cumulative, and did not oust a court of equity of its jurisdiction, in an action to restrain the exe 7 Updegraff v. Lucas, 93 P. 630, 76 Kan. 456, 13 Ann. Cas. 860, rehearing denied 94 P. 121, 76 Kan. 456, 13 Ann. Cas. 860. In a suit to enjoin execution, evidence held to show that a prior execution had been issued within five years from the judgment, so as to prevent its becoming dormant. Sparks v. Martin, 150 P. 532, 96 Kan. 282, Ann. Cas. 1918C, 324. 8 Gale Mfg. Co. v. Sleeper, 79 P. 648, 70 Kan. 806. Yount v. Hoover, 149 P. 408, 95 Kan. 752, L. R. A. 1915F, 1120, Ann. Cas. 1918C, 148. 10 McGill v. Sutton, 72 P. 853, 67 Kan. 234. HON.PL.& PRAC.-97 (1537) cution of the judgment, on the ground that it created no lien on the land levied on.14 § 1630. Creation of lien The issuance and levy of an execution upon property fixes a lien thereon in favor of a judgment creditor only to the extent of the judgment debtor's actual as distinguished from apparent, interest in the property.15 The lien of a judgment does not attach to the mere legal title to the land existing in the judgment debtor, when the equitable and beneficial title is in another.16 Where a judgment from the justice or county court has been filed in the district court, "such judgment shall be a lien upon the real estate of the judgment debtor, from the day of filing the abstract or transcript, in the same manner and to the same extent as if the judgment had been rendered in the district court." " "All real estate not bound by the lien of the judgment, as well as goods and chattels of the debtor, shall be bound from the time they shall be seized in execution." 18 § 1632. Liens prior to execution A lien upon personal property, not reduced to possession or recorded, is void as to execution creditors, 19 Before the lien of an execution can attach to mortgaged chattels, the officer must pay off or tender the amount of any existing mortgage liens, or deposit the amount of the mortgage debt with the county treasurer, for the use of the holder of the mortgage.20 A mortgagee of chattels, who has taken possession of the mortgaged property for the purpose of foreclosure, cannot waive the right to have the mortgage debt paid or deposited with the county 14 Rader v. Gvozdanovic, 130 P. 159, 35 Okl. 421. 15 Hamilton v. Brown, 31 Okl. 213, 120 P. 950. This rule applies where the judgment debtor, although having the legal title to the lands, holds it subject to a resulting trust in favor of another. Id. See, also, Black on Judgments, par. 421; 23 Cyc. 1371. 16 J. I. Case Threshing Machine Co. v. Walton Trust Co., 39 Okl. 748, 136 P. 769. 17 Rev. Laws 1910, § 5218. 18 Rev. Laws 1910, § 5152. 19 Sedgwick City Bank v. Pollard, 54 P. 14, 8 Kan. App. 34. 20 Moore v. Calvert, 58 P. 627, 8 Okl. 358. treasurer, so as to make effective the levy of an execution, without delivering possession of the property to the officer, and waiving the lien of his mortgage.21 Where one wrongfully obtains possession of personal property which has been levied on under execution, and sells the same, the vendee does not take a title free from the lien of the execution.22 Where a mortgage, purporting to be a lien on land of a judgment debtor, is alleged to be without consideration and in fraud of a judgment creditor, he can have its validity determined before the land is sold on execution, in order to ascertain the actual interest of the debtor in the land.23 § 1633. Duration of lien on realty "No judgment heretofore rendered, or which hereafter may be rendered, on which execution shall not have been taken out and levied before the expiration of one year next after its rendition, shall operate as a lien on the estate of any debtor, to the prejudice of any other judgment creditor. But in all cases where judgment has been or may be rendered in the Supreme Court, and a special mandate awarded to the district court to carry the same into execution, the lien of the judgment creditor shall continue for one year after the first day of the term of the district court to which such mandate may be directed. Nothing in this section contained shall be construed to defeat the lien of any judgment creditor who shall fail to take out execution and cause a levy to be made, as herein provided, when such failure shall be occasioned by appeal, proceedings in error, injunction, or by vacancy in the office of sheriff, or the disability of such officer, until one year after such disability shall be removed. In all cases where real estate has been or may hereafter be taken on execution and appraised and twice advertised and offered for sale, and shall remain unsold for the want of bidders it shall be the duty of the court from which such execution issued, on motion of the plaintiff, to set aside such appraisement and order a new one to be made, or to set aside such levy and appraisement and award a new execution to issue, as the case may require." 24 21 Moore v. Calvert, 58 P. 627, 8 Okl. 358. 22 Ross v. Richolson, 45 P. 97, 3 Kan. App. 239. 23 Taylor v. Dunlap Stone & Lime Co., 16 P. 751, 38 Kan. 547. 24 Rev. Laws 1910, § 5177. Where real estate has been sold on execution prior to the death of one of the judgment debtors, it is unnecessary to revive the action before the confirmation of the sale or the execution of the deed.25 § 1634. Claims of third persons-Bond-Form "If the officer, by virtue of an execution issued from any court of record in this state, shall levy the same on any goods and chattels claimed by any person other than the defendant, or be requested by the plaintiff to levy on any such goods and chattels, the officer may require the plaintiff to give him an undertaking, with good and sufficient securities to pay all costs and damages that he may sustain by reason of the detention or sale of such property; and until such undertaking shall be given, the officer may refuse to proceed as against such property." 20 The terms of a bond executed by third persons claiming cattle seized on execution do not estop them from claiming title to the cattle in a suit on the bond by the execution creditor, where the terms disclosed that it was not given on behalf of the execution debtors and contained an express declaration of ownership in the third persons.27 Where property is wrongfully replevied from a sheriff, and during the time of its possession by the plaintiff it depreciates in value, the sheriff is entitled to damages for the amount of depreciation, although his term of office had expired before judgment rendered.** In an action to recover personalty, taken under execution by defendant as constable, it is not error to refuse to strike an allegation that the execution creditor had knowledge of the mortgage, since notice to him is binding on the officer, who is only an agent.20 Where corn in the possession of plaintiff was levied on by defendant as the property of a third person, and sold, the defendant cannot defeat an action for restitution by showing that the property did not belong to plaintiff, but it must appear that it belonged to the judgment debtor.30 25 Johnson Loan & Trust Co. v. Ball, 53 P. 878, 7 Kan. App. 667. 26 Rev. Laws 1910, § 5157. 27 Bowles Live Stock Commission Co. v. Tate, 138 P. 602, 91 Kan. 538. 28 Bowersock v. Adams, 54 P. 1064, 59 Kan. 779. 29 Starr v. Cox, 57 P. 247, 9 Kan. App. 882. 80 Buckhalter v. Nuzum, 61 P. 310, 9 Kan. App. 885. In replevin for property seized under execution, where the defendant officer admitted the levy, and alleged that a redelivery bond was given and approved, he could not, by withdrawing his answer be permitted to deny his possession.31 When an interplea, averring interpleader's ownership of property in controversy, and praying a return thereof, showed that the property had been seized under execution nearly three years prior to the filing of the interplea, a general demurrer to such interplea raised the question of statutory limitation.82 INDEMNITY BOND GIVEN BY EXECUTION CREDITOR TO SHERIFF (Caption.) Know all men by these presents: That we, A. B., as principal, and E. F. and G. H., as sureties, are held and firmly bound unto J. K., sheriff of county, state of Oklahoma, in the penal sum of dollars, for the payment of which, well and truly to be made, we do hereby jointly and severally bind ourselves, our heirs, executors, administrators and assigns. The condition of the above obligation is such that, whereas, on the day of -, 19, a writ of execution was issued out of the district court of county, state of Oklahoma, against C. D., at the suit of A. B., directed and delivered to said sheriff; and whereas, the said sheriff has, by virtue of said writ, seized upon, taken, and levied upon (or, has been directed by said A. B. to seize upon, take, and levy upon) the following described property, to wit: (Describe property.) Now, therefore, we hereby undertake to pay all costs and damages that said sheriff may sustain by reason of the taking, detention, or sale of such property. 19 A. B. E. F. G. H. day of County, Oklahoma. |