ARTICLE FOURTH. Remedies for failure of title to real property sold, and to enforce contribution. Sec. 1479. When evicted purchaser may recover purchase-money. 1480. Remedy of judgment creditor thereupon. 1481. Contribution between owners of real property. 1482. Id.; when part owner redeems. 1483. Order of contribution. 1484. Contribution, how enforced by means of original judgment. 1486. Entry upon the docket. 1479. When evicted purchaser may recover purchase money. The purchaser of real property, sold by virtue of an execution, his heir, devisee, grantee, or assignee, who is evicted from the possession thereof, or against whom judgment is rendered in an action to recover the same, may recover the purchase-money, with interest, from the person for whose benefit the property was sold, where the judgment was rendered, or the eviction occurred, in consequence, either: 1. Of any irregularity in the proceedings concerning the sale; or 2. Of the judgment, upon which the execution was issued, being vacated or reversed, or set aside for irregularity, or error in fact. From 2 R. S. 375 (Part 3, c. 6, tit. 5), § 68. { 1480. Remedy of judgment creditor thereupon. Where final judgment is rendered, against the defendant, in an action specified in subdivision first of the last section, the judgment, by virtue of which the sale was made, remains, in his favor, valid and effectual against the judgment debtor therein, his executor, administrator, heir, or devisee, for the purpose of collecting the sum paid on the sale, with interest. He may accordingly have a further execution upon that judgment; but the execution does not affect a purchaser in good faith, or an incumbrancer by mortgage, judgment, or otherwise, whose title or whose incumbrance accrued, before the actual levy thereof. From Id., § 69. § 1481. Contribution between owners of real property. Where the real property of two or more persons is liable to satisfy a judgment, and the whole of the judgment, or more than a due proportion thereof, has been collected, by a sale of the real property of one or more of them, by virtue of an execution issued upon the judgment; the person so aggrieved, or his executor or administrator, may maintain an action, to compe a just and equal contribution by all the persons, whose rea property ought to contribute as prescribed in the next section but one. From Id., § 70. § 1482. Id.; when part owner redeems. Where the heir, devisee, or grantee, of a judgment debtor, having an absolute title to a distinct parcel of real property, sold by virtue of an execution, redeems, as prescribed in section 1458 of this act, the property sold, or any part or parts thereof separately sold, which include his property; he may, in like manner, maintain an action, to compel a just and equal contribution by those who own the residue of the property thus redeemed. From 2 R. S. 371 (Part 3, c. 6, tit. 5), § 47. § 1483. Order of contribution. Where an action is brought, as prescribed in the last two sections, the real property is liable to contribution in the following order: 1. If it comprises different undivided shares or distinct parcels, which have been conveyed by the judgment debtor, they are liable in succession, commencing with the portion last conveyed. 2. If it comprises different undivided shares or distinct parcels, which have been sold by virtue of two or more executions, they are liable in succession, commencing with the portion sold under the last and youngest judgment. 3. If it comprises different undivided shares or distinct parcels, some of which have been conveyed by the judgment debtor, and some of which have been sold by virtue of one or more executions, they are respectively liable in succession, according to the order prescribed in the first and second subdivisions of this section. From 2 R. S. 375, § 71. § 1484. Contribution, how enforced by means of original judgment. For the purpose of enforcing contribution, as prescribed in the last section, the court, in which the action is brought, may, and in a proper case, must, permit the plaintiff to use the original judgment, and to collect, by an execution issued thereupon, out of any real property subject to the lien thereof, the sum which ought to be contributed by that property. For that purpose, the lien of the original judgment, upon that real property, when preserved, as prescribed in the next section, continues, for the term prescribed in sections 1251 and 1255 of this act, to the extent of the sum, which ought to be so contributed, notwithstanding the payment made by the party seeking contribution. From Id., § 72. § 1485. Requisites to preserve the lien. The lien of the original judgment may be preserved, as prescribed in the last section, by filing, in the clerk's office of the county where the real property is situated, within twenty days after the payment, for which contribution is claimed, an affidavit, in behalf of the person aggrieved, stating the sum paid, and his claim to use the judgment for the reimbursement thereof, with a notice, requiring the clerk to make the entries specified in the next section. But the lien is not preserved, as against a grantee or mortgagee in good faith, for a valuable consideration, without notice, and before the entries are actually made. From Id., § 73. § 1486. Entry upon the docket. On filing the affidavit and notice, the clerk must make, upon the docket of the judgment, an entry, stating the sum paid, and that the judgment is claimed to be a lien to that amount. Where it is desired to preserve the lien, upon property situated in two or more counties, a similar affidavit and notice must be filed with, and a similar entry made by the clerk of each county. From Id., § 74. TITLE III. Execution against the person. Sec. 1487. In what cases execution may be issued against the person. 1488. Id.; against a woman. 1489. When execution against property must be first issued. 1490. Simultaneous executions not allowed against property and person. 1491. Id.; when debtor has been taken. 1492. New execution may issue after escape. 1493. Id.; when debtor dies charged in execution. 1494. Id.; when creditor discharges debtor after thirty days. 1495. New execution not to be enforced against real property sold, etc § 1487. [Am'd, 1879.] In what cases execution may be issued against the person. Where a judgment can be enforced by execution, as prescribed in section 1240 of this act, an execution, against the person of the judgment debtor, may be issued thereupon, subject to the exception specified in the next section, in either of the following cases: 1. Where the plaintiff's right to arrest the defendant depends upon the nature of the action. 2. In any other case, where an order of arrest has been granted and executed in the action, and if it was executed against the judgment debtor, where it has not been vacated. From Co. Proc., § 288. Am'd by L. 1879, c. 542. § 1488. [Am'd, 1879.] Id.; against a woman. But an execution cannot be issued against the person of a woman, unless an order of arrest has been granted and executed in the action, and, if it was executed against the judgment debtor, has not been vacated. New. See §§ 553, 1206, ante. § 1489. When execution against property must be first issued. Unless the judgment debtor is actually confined, without having been admitted to the liberties of the jail, by virtue of an execution against his person, issued in another action, or of an order of arrest or a surrender by his bail, in the same action, an execution against his person cannot be issued, until an execution against his property has been returned, wholly or partly unsatisfied. If he is a resident of the State, the executioL against his property must have been issued to the county where he resides. From Co. Proc., § 288. 1490. Simultaneous property and person. executions not allowed against An execution against the person of the judgment debtor cannot be issued, without leave of the court, while an execution against his property, issued in the same action, remains unreturned; and an execution against his property cannot be issued, without leave of the court, while an execution against his person, issued in the same action, remains unreturned. From 2 R. S. 364 (Part 3, c. 6, tit. 5), § 6. § 1491. Id.; when debtor has been taken. Where a judgment debtor has been taken, and remains In custody, by virtue of an execution against his person, another REAL execution cannot be issued, in the same action, against his person or his property, except in a case specially prescribed by law. From Id., § 7. § 1492. New execution may issue after escape. If a judgment debtor escapes, after having been taken, by virtue of an execution against his person, he may be retaken, by virtue of a new execution against his person; or an execution against his property may be issued, as if the execution, by virtue of which he was taken, had been returned, without his having been taken. From Id., § 8. § 1493. Id.; when debtor dies charged in execution. Where a judgment debtor, who has been taken by virtue of an execution against his person, dies while in custody, a new execution against his property may be issued, as if the execution, by virtue of which he was taken, had been returned without his having been taken. From 2 B. S. 368 (Part 3, c. 6, tit. 5), § 28. § 1494. Id.; when creditor discharges debtor after thirty days. At any time after a judgment debtor has remained in custody, by virtue of an execution against his person, for the space of thirty days, the judgment creditor may serve upon the sheriff a written notice, requiring him to discharge the judgment debtor from custody, by virtue of the execution. Whereupon the sheriff must discharge the judgment debtor, and return the execution accordingly. After service of such a notice, another execution, against the person of the judgment debtor, cannot be issued upon the judgment; but after his discharge, the judgment creditor may otherwise enforce the judgment, as if the execution, from which he was discharged, had been returned, without his having been taken. From L. 1857, c. 427, § 1; 2 R. S. 34 (Part 2, c. 5, tit. 1), § 17. § 1495. New execution not to be enforced against real property sold, etc. A new execution against property, issued in a case specified in the last two sections, cannot be enforced against an interest in real property, including a chattel real, which was purchased in good faith, from the judgment debtor, after the recovery of the judgment upon which it is issued; or which was sold by virtue of an execution, issued upon a previous or subsequent judgment. From 2 R. S. 368 (Part 8, c. 6, tit. 5), §§ 29, 30, 408 Special Provisions CHAPTER XIV.1 Regulating Actions Relating to TITLE I. Actions Relating to Real Property. TITLE I. Actions relating to real property. Article 1. Action to recover real property. 2. Action for partition. 3. Action for dower. 4. Action to foreclose a mortgage. 6. Action to compel the determination of a clarm to real property. 7. Action for a nuisance. 8. Other actions relating to real property, 9. Provisions applicable to two or more of the actions specified in this ARTICLE FIRST. Action to recover real property. Sec. 1496. Plaintiff may recover damages with the land. 1497. Rents and profits to be included in damages. 1498. Mortgagee cannot maintain action, 1499. Action cannot be maintained for dower. 1500. Separate action by joint tenant or tenant in common. 1501. Grantee of lands held adversely may maintain action. 1502. Against whom action to be brought. 1503. Who may be joined as defendants. 1504. When action may be brought for non-payment of rent 1511. Property claimed in action; how described in complaint. 1514. Evidence of authority. 1515. When ouster to be proved. 1516. Rule when there are distinct occupants. 1517. The last section qualified. 1518. When plaintiff may recover against one defendant, subject to rights 1519. Verdict, etc.. to state nature of plaintiff's estate. 1520. Expiration of plaintiff's title before trial. 1521. Abatement of action. 1522. Action to be divided, when different persons succeed to different 1523. Id.; when different persons succeed to real property and to rents 1524. Effect of judgment rendered after trial of issue of fact. 1525. [Repealed.] 1526. Effect of judgment by default, etc. 1529. Effect on possession of vacating judgment. 1527. [Repealed. ] 1528. [Repealed.] 1530. [Repealed.] 1531. Damages recoverable; set-off by defendant. The The preceding chapters of the Code were enacted by L. 1876, c. 448. following chapters, from c. 14 to c. 22, inclusive, were not enacted until 1880 REAL |