The attaching creditor of a mortgagor is not required to pay off the amount of the mortgage debt on property mortgaged in another state and subsequently brought into this state."2

"Where there are several orders of attachment against the same defendant, they shall be executed in the order in which they are received by the sheriff." 93

§ 1799. Priority-How determined-Reference

"Where several attachments are executed upon the same property, or the same persons are made garnishees, the court, on motion of any of the plaintiffs, may order a reference, to ascertain and report the amounts and priorities of the several attachments, or may determine any such amount and priorities without such reference." 11 94

§ 1800.

Between attachments and other liens

A contract of sale of property for which part of the purchase price is paid, the seller agreeing to convey the title to the purchaser on payment of his note for the balance, vests a good equitable title in the purchaser as against an attaching creditor of the vendor, though the latter has no notice of the sale; and the payment of the note by

92 St. 1893, § 3280, which provides that, before property covered by a chattel mortgage is attached by a creditor of the mortgagor, the officer shall pay off the amount of the mortgage debt, does not apply to a mortgage executed in the Indian Territory on property located therein and subsequently brought into this territory. Greenville Nat. Bank v. Evans-Snider-Buel Co., 60 P. 249, 9 Okl. 353; Rev. Laws 1910, § 4041.

93 Rev. Laws 1910, § 4818.

The sheriff must levy attachments upon the debtor's property in the order in which he receives them, and, if a levy under a junior order is first made, it will inure to the benefit of the senior order. Atchison, T. & S. F. R. Co. v. Schwarzschild & Sulzberger Co., 48 P. 591, 58 Kan. 90, 62 Am. St. Rep. 604. The priority of such attachments against property, already in the hands of the sheriff under former attachments, is determined by the time of their reception by the sheriff, and not by the order in which he levies them. Larabee v. Parks, 23 P. 598, 43 Kan. 436.

An amendment to an affidavit in attachment stating the amount of the indebtedness relates back to the time of the filing of the original affidavit, and the lien of the writ issued thereon is prior to that of a junior attachment levied before such affidavit was amended. Coyle Mercantile Co. v. Nix, 54 P. 469, 7 Okl. 267.

94 Rev. Laws 1910, § 4859.

the purchaser, and his acceptance of the deed, without actual notice of the attachment, vests in him the legal title also.95

Where a debtor, to secure the debt, gives a chattel mortgage on property of value largely in excess of the debt, and on default the mortgagee takes possession, another creditor of the mortgagor, who garnishes the mortgagee so in possession, has a lien prior to a subsequent attachment by a third creditor."

Where attachments and executions are levied upon the same property, by the same officer, and the attachments are levied first, and have priority, and the execution creditors cause the officer to sell the property on their executions to different persons, and in small lots, and to pay the proceeds of the sale to themselves, they are liable to the attaching creditors for so much of the proceeds as will satisfy the judgments rendered in favor of the attaching creditors.97

Where the order of a judge for the discharge of an attachment contains a provision that the attachment shall be suspended for 30 days, and during the period of suspension the plaintiff procures the order of dissolution to be rescinded for fraud in obtaining it, such attachment will be considered as continuing in force, so as to retain a priority of lien on the part of the plaintiff in the action as against one who, before the making of the first order by such judge, levied an execution subject to the attachment upon the property seized thereunder.98

The lien of an attachment levied on a stock of goods by a deputy sheriff has priority over that of an execution issued out of another court on the same goods, and placed in the sheriff's hands before, but not levied until after, the levy by the deputy.""

95 Burke v. Johnson, 15 P. 204, 37 Kan. 337, 1 Am. St. Rep. 252. 96 R. T. Davis Mill Co. v. Bangs, 49 P. 628, 6 Kan. App. 38.

97 Eddy v. Weaver, 15 P. 492, 37 Kan. 540.

98 Guernsey v. First Nat. Bank, 65 P. 250, 63 Kan. 203.

99 St. 1893, § 4336, provides that chattels shall be bound by the lien of a judgment "from the time they shall be seized in execution." Held, that the lien of an attachment issued out of the district court and levied on a stock of goods by the deputy sheriff has priority over that of an execution issued out of the probate court on the same goods, and placed in the sheriff's hands before, but not levied until after, the levy by the deputy. Burnham v. Dickson, 47 P. 1059, 5 Okl. 112; Rev. Laws 1910, § 5152.

§ 1801. Transfer-Notice

An attachment levy on real estate is constructive notice only to such persons as may acquire subsequent interests in the attached realty from parties or privies to the action.1

A purchaser of land, with notice of an attachment lien, takes subject to such lien, and has no better position to contest its validity than the grantor would have had.2

Where a petition is filed, an attachment duly issued and levied on the interest of defendant in real estate, but the only service attempted to be made on defendant, a nonresident, within 60 days of the filing of the petition, was vacated and set aside by the court, the proceedings do not charge third persons with notice of the pendency of the action.3

§ 1802. Duration of lien

In the absence of a statutory provision regulating the continuance of an attachment lien which has been affirmed by judgment, its duration is the duration of the judgment itself.*

§ 1803. Release or abandonment

Before an attachment lien will be deemed abandoned, some affirmative act of the creditor must be shown inconsistent with the continuance of the lien."

A sheriff may release attached property on direction of the attaching party or his attorney without an order of court."

§ 1804. Custody of property

"When the property attached is real property, the officer shall leave with the occupant thereof, or, if there be no occupant, in a conspicuous place thereon, a copy of the order. Where it is personal property, and he can get possession, he shall take the same into his custody, and hold it subject to the order of the court."

The attachment of real estate at the commencement of an action

1 Travis v. Topeka Supply Co., 22 P. 991, 42 Kan. 625.

2 Stillman v. Hamer, 78 P. 836, 70 Kan. 469, 109 Am. St. Rep. 465.

3 Wellsford v. Durst, 55 P. 493, 8 Kan. App. 231.

* Stillman v. Hamer, 78 P. 836, 70 Kan. 469, 109 Am. St. Rep. 465. Stillman v. Hamer, 78 P. 836, 70 Kan. 469, 109 Am. St. Rep. 465.

6 Southwestern Broom & Warehouse Co. v. City Nat. Bank, 52 Okl. 422, 153

P. 204.

7 Rev. Laws 1910, § 4820.

gives the plaintiff a contingent lien thereon, but does not give him a right to the possession of the estate, nor to the rent, issues, and profits thereof.8

Where a sheriff is in possession of personal property by an order of attachment rightfully issued, he is entitled to continue such possession until the lien is lost, or the property disposed of by force of it, or the lien is satisfied.

§ 1805. Receiver

"The court, or any judge thereof, during vacation, may, on application of the plaintiff, and on good cause shown, appoint a receiver, who shall take an oath faithfully to discharge his duty and shall give an undertaking to the state of Oklahoma, in such sum as the court or judge may direct, and with such security as shall be approved by the clerk of such court, for the faithful performance of his duty as such receiver, and to pay over all money and account for all property which may come into his hands by virtue of his appointment, at such times and in such manner as the court may direct."

99 10

"Such receiver shall take possession of all notes, due bills, books of account, accounts and all other evidences of debt that have been taken, by the sheriff or other officer, as the property of the defendant in attachment, and shall proceed to settle and collect the same. For that purpose, he may commence and maintain actions in his own name as such receiver; but in such actions no right of defense shall be impaired or affected." 11

"Such receiver shall forthwith give notice of his appointment to the persons indebted to the defendant in attachment. The notice shall be written or printed, and shall be served on the debtor or debtors, by copy personally, or by copy left at the residence of the debtor or debtors; and from the date of such service, the debtors shall stand liable to the plaintiff in attachment for the amount of

8 Kothman v. Markson, 9 P. 218, 34 Kan. 542.

9 First Nat. Bank v. Hesser, 77 P. 36, 14 Okl. 115.

10 Rev. Laws 1910, § 4845.

11 Rev. Laws 1910, § 4846.

money or credits in their hands, or due from them to the defendant in attachment, and shall account therefore to the receiver." 12

"Such receiver shall, when required, report his proceedings to the court, and hold all moneys collected by him, and the property which may come into his hands, subject to the order of the court." 13

"When a receiver is not appointed by the court or a judge thereof, the sheriff or other officer attaching the property, shall have all the powers and perform all the duties of a receiver appointed by the court or a judge, and may, if necessary, commence and maintain actions in his own name as such officer. He may be required to give security other than his official undertaking." 14

§ 1810. Redelivery bond-Form

"The sheriff shall deliver the property attached to the person in whose possession it was found, upon the execution, by such person, in the presence of the sheriff, of an undertaking to the plaintiff, with one or more sufficient sureties, resident in the county, to the effect that the parties to the same are bound, in double the appraised value thereof, that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court that any part of said property has been lost or destroyed by unavoidable accident, the value thereof shall be remitted to the person so bound." 15

12 Rev. Laws 1910, § 4847. 13 Rev. Laws 1910, § 4848. 14 Rev. Laws 1910, § 4849.

15 Rev. Laws 1910, § 4821.

The omission of a description of the property attached from the space provided for its insertion in a forthcoming bond in attachment will not vitiate the bond, where the recitals in the body of the bond leave no doubt that the property to be redelivered to the sheriff is the same attached in the proceeding, the title of which appears at the head of the bond. Woodward v. Bingham, 106 P. 843, 25 Okl. 400.

Where property mortgaged in Kansas and brought to Oklahoma was seized under attachment, mortgagor, who by replevin obtains possession and removes property outside state without foreclosure, is guilty of conversion, and attachment plaintiff is entitled to a return of property or a satisfaction of his judgment. Haltom v. Nichols & Shepard Co., 64 Okl. 184, 166 P. 745.