tried." Held, that the defendant was entitled to a discharge. Caflin v. Underwood, 75-485. When a defendant has been arrested under, a provisional order, upon a charge of concealment of his property, and denies such fraud, and afterwards, by consent, judgment is entered for the debt only, and the issue of fraud is not tried, execution cannot issue against his person. Caflin v. Underwood, 75-485. { 261.-Form of the execution. [Amended by Acts of 1868-'69, Chapter 148, Section 1.] The execution must be directed to the sheriff, or coroner when the sheriff is a party or interested, subscribed by the clerk of the court, and must intelligibly refer to the judgment, stating the county where the judgment-roll or transcript is filed, the names of the parties, the amount of the judgment, if it be for money, and the amount actually due thereon, and the time of docketing in the county to which the execution is issued, and shall require the officer substantially as follows: 1. If it be against the property of the judgment debtor, it shall require the officer to satisfy the judgment out of the personal property of such debtor; and if sufficient personal property cannot be found, out of the real property belonging to him on the day when the judgment was docketed in the county, or at any time thereafter, but no execution against the property of a judgment debtor, shall be a lien on the personal property of such debtor, as against any bona fide purchaser from him for value, or as against any other execution, except from the levy thereof. Phillips v. Trezevant, 70-176; Harris v. Ricks, 63-653. See these cases as cited under previous sections of this chapter. 2. If it be against real or personal property in the hands. of personal representatives, heirs, devisees, legatees, tenants of real property or trustees, it shall require the officer to satisfy the judgment out of such property. g. If it be against the person of such judgment-debtor, it shall require the officer to arrest such debtor, and commit him to the jail of the county until he shall pay the judgment or be discharged according to law. 4. If it be for the delivery of the possession of real or personal property, it shall require the officer to deliver the possession of the same, particularly describing it, to the parties entitled thereto, and may at the same time require the officer to satisfy any costs, damages, or rents or profits recovered by the same judgment, out of the personal property of the party against whom it was rendered, and the value of the property for which the judgment was recovered, to be specified therein; if a delivery thereof cannot be had, and if sufficient personal property cannot be found, then out of the real property belonging to him. on the day when the judgment was docketed, or at any time thereafter, and shall in that respect be deemed an execution against property. Grier v. Rhyne, 69-346. It is the modern practice under a writ of possession, for the plaintiff to point out to the sheriff, at his peril, the land recovered, and the sheriff puts him in accordingly. Johnson v. Nevill, 65–677. Į 262.-To be returnable in sixty days. The execution shall be returnable within sixty days, after its receipt by the officer, to the clerk with whom the record of judgment is filed. This section, together with numerous other provisions, now applies only to the execution in special proceedings. ¿ 262.a-Execution returnable to the term of the court. All executions issued, or judgments in civil actions, shall be tested as of the term next before the day on which they issued, and shall be returnable to the term of the court next after that from which they bear test; and all executions now in the hands of any sheriff, issued from any Superior Court, shall be returned to the next term of said court. The Act of Assembly, 1870-'71, Chapter 42, by which executions issued on judgments in civil actions, are required to be tested as of the term next before the day on which they are issued, is merely directory, and its omission does not vitiate the process. Bryan v. Hubbs, 69-423. 263.-Existing laws relating to execution continued, until otherwise provided for. Until otherwise provided by the legislature, the existing provisions of law, not in conflict with this chapter, relating to executions and their incidents, the property liable to sale on execution, the sale and redemption thereof, the powers and rights of officers, their duties therein, and the proceedings to enforce those duties, and the liability of their sureties, shall apply to the executions prescribed by this chapter. A proceeding to make a judgment nisi absolute must be com-. menced by a summons. This section, it is true, continues in force previous laws respecting the liability of sheriffs on executions and the proceedings to enforce them, when not inconsistent with the Code, as does also § 254; but § 362 abolishes the writ of scire facias, making no exception to cover such cases. Thompson v. Berry, 64-79. Subsequent Enactments. Chapter 237, of the Acts of 1868-'69, establishing days and places for the sale of property, under execution, repealed: ist. So much of sections 14 and 16 of chapter 45 of the Rev. Code, as related to the sale of land and slaves under execution. 2d. So much of § 263 of the Code of Civil Procedure, as related to days of sale. 3d. Section 2 of the Act of August 24th, 1866, "regulating the sale of land under execution." 4th. All private acts allowing sale of land under execution at other times or places than those mentioned in said Act. It provided (1) that all real property sold under execution or by virtue of an order of court should be sold at the court-house of the county in which the same, or some part thereof was situated; (2) That the sale should be during the first three days of the term of the Superior Court, or on the first Monday in a month. (3) That the sheriff might postpone the sale from day to day, not more than six days. (4) That real property should not be sold until the same should have been advertised for thirty days at the court-house door, and three other public places in the county; or, by advertisement once a week for four weeks, in a newspaper published in the county, and (5) That the sheriff should serve a copy of the advertisement on the defendant, if within the county, and if not, mail the same to his last known address. Chapter 215, of the Acts, 1869-'70, amended section 8 of the above act, by providing that the sale should be during the first three days of the term of the Superior Court, or, on the first Saturday in a month, and, on the Monday and Tuesday next succeeding such Saturday. Chapter 7, of the Acts of 1873-74, cured defects in executions made returnable in sixty days, which were issued after the ratification of the "Act suspending the Code," March 22d, 1869, and before the passage of the last named act. Chapter 206, of the Acts of 1874-75, repealed and amended the foregoing acts, so as to provide, that such sales should be on the first Monday in each and every month, except, the months of the Superior Courts, and that in such months such sales should be on the first three days of the terms of said court. Chapter 216, of the Acts of 1876-77, repeals sections seven and eight of Chapter 237 of the Acts of 1968-69, and Chapter 206 of the Acts of 1874-75, and all other laws and clauses of laws in conflict with provisions, and then enacts: Chapter 216, Acts of 1876–77. SEC. 2. That sheriffs and other public officers selling real estate under execution, shall sell the same at the court house of the county in which the property, or some part thereof, is situate, on the first Monday in every month, except the month in which the Superior Court is held therein; then the sale shall be made during the first three days of the court. SEC. 3. That any officer or other person selling real estate under the order of any court of this State, shall sell the same at the place named in the order, but if no place be named therein, the same shall be made at the time and place provided in section 2 of this act, for sale under execution. SEC. 4. That sheriffs and other public officers may sell personal property on any day except Sunday, after advertising the same for ten full days previous to the day of sale, by posting notices of the sale at the court-house door, and at three other public places in the county. SEC. 5. That all sales of property heretofore made by sheriffs, and other persons having authority to make the same, so far as the time and place are concerned, are hereby declared to be valid, as much so as if such sales had been made at the times and places as provided by law. CHAPTER II. DEFENDANTS CLAIM FOR BETTERMENTS UNDER EXECUION FOR POSSESSION OF LAND. SEC. 263.a Defendant allowed for im- SEC. 263. Does not apply to a suit by provements in action to recover land. 263.b Jury to assess damages and 263.e Rental for more than three 263.g Verdict for defendant a lien on the land. 263.h Tenant for life may recover a mortgagee against his mortgagor. 263 Value of plaintiff's estate may be ascertained. 263.k How value of plaintiff's estate to be estimated. 263. Plaintiff may relinquish 263.m Land bound for value of 263.0 Defendant may recover on 263.a-Defendant allowed for improvements in action to recover land. [Acts of 1871-72, Chapter 147, Section 1.] Any defendant against whom a judgment shall be rendered for land, may, at any time before the execution of such judgment, present a petition to the court rendering the same, stating that he or those under whom he claims while holding the premises under a title believed by him or them to be good have made permanent improvements thereon, and praying that he may be allowed for the same, over and above the value of the use and occupation of such land; and thereupon the court may, if satisfied of the probable truth of the allegation, suspend the execution of such judgment and impannel a jury to assess the damages of the plaintiff and the allowance to the defendant for such improvements. Although a parol contract to convey land is void by our statute of frauds, yet, if the vendee relying thereupon pays the purchase money, and makes improvements, he cannot be ousted until the vendor repays the purchase money, and makes compensation for the value of the improvements. Therefore, upon the trial of an action for the recovery of land, for the purpose of supporting the equitable counterclaim of the defendant, evidence is admissable to show: That A executed a deed to the defendant for the locus in quo, and that at the time of executing said deed, A, the plaintiff, and the defendant, both believed that A held the legal title thereto, in trust for the plaintiff; that the plaintiff sold the land, received the purchase money, and directed the land to be conveyed to the defendant; and that the defendant entered upon and improved the land, with the consent and approval of the plaintiff: it is also admissable to prove the value of the improvements. Daniel v. Crumpler, 75–184. |