order substituting those who are not joined with him as defendants in his place. In either case the application is made in the same manner and is subject to the same provisions as if made as prescribed in section fourteen hundred and twenty-one of this act. Am'd by ch. 452 of 1887. § 1426. Effect of the order. An order, made as prescribed in the last five sections, does not affect the merits of the cause of action, or of the defence, except so far as it' limits the controversy to particular property. But if the substituted or remaining defendants recover judgment, they are entitled to single costs only. If the action is discontinued, or the complaint dismissed, a new action may be brought, as if the former action had not been brought. § 1427. Officer to whom indemnity is given required to give notice of action. Where an action is brought in a case where one or more persons are entitled to make an application for an order of substitution, or where one or more persons are liable to be substituted as defendants, as prescribed in section one thousand four hundred and twenty-one of this act, the officer to whom the instrument or instruments of indemnity was given cannot maintain an action thereupon against a person entitled to make, but who has not made, such an application, or who is liable to be but has not been substituted as a defendant unless notice of the commencement of the action against the officer, or the person acting by his command or in his aid, is given before the trial thereof, or at least ten days before judgment by default is taken therein either to attorney or several attorneys whose name is or several names are subscribed to the execution or several executions or warrants of attachment or several warrants of attachments, or personally to the judgment creditor or creditors, or the plaintiff or several plaintiffs in the action in which the warrant of attachment was or several warrants of attachments were issued, or to one of the persons who executed the instrument or instruments of indemnity. Am'd by chs. 182 and 452 of 1887. § 1428. Sale of personal property; how made. Personal property must be offered for sale, in such lots and parcels, as are calculated to bring the highest price. Except where the officer is expressly authorized, by this article, to sell property not in his possession, personal property shall not be offered for sale, unless it is present, and within the view of those attending the sale. From 2 R. S. 367, Part 3, ch. 6, tit. 5, § 23. § 1429. Notices of sale to be posted. At least six days' previous notice of the time and place of a sale of personal property, by virtue of an execution, must be given, by posting conspicuously written or printed notices thereof, in at least three public places of the town or city where the sale is made. From Id., 21. RE ARTICLE THIRD. Sale, Redemption and Conveyance of Real Property; Rights and Liabilities of Persons Interested. SEC. 1430. To what leasehold property this article applies. 1433. Direction to be indorsed on execution. 1434. Notice of sale of real property; how given. 1435. Property, how described therein. Part may be sold. 1436. Penalty for irregularity in sale. 1437. Manner of conducting sale. 1438. Sheriff to make duplicate certificates of sale. 1439. Certificate to be recorded, etc. 1440. Title to real property not divested before deed. 1441. Rights of holder of the property during intermediate period. 1442. Order to prevent waste; when and how applied for. 1443. Proceedings to punish violation of the order. 1444. Mode and extent of punishment. 1445. How warrant, etc., superseded. 1446. When and how real property sold may be redeemed. 1447. By whom such redemption may be made. 1448. Such redemption avoids the sale. 1449. When credito: may redeem. 1450. What sum to be paid, etc., when creditor redeems. 1451. Redemption by another creditor from a redeeming creditor. 1452. Id.; when second redeeming creditor has the prior lien. 1453. Subsequent redemption by other creditors. 1454. When creditor may redeem after fifteen months. 1455. When redemption must be made at sheriff's office. 1456. Id.; as to mortgage creditor. 1457. Creditor may redeem again under another judgment, or mortgage. 1458. Redemption by person entitled to redeem part. 1459. Redemption by owners of undivided shares. 1460. Id.; by creditors having liens on undivided shares. 1461. Right to redeem not affected by agreement. 1462. To whom money paid upon redemption. 1463. Certificate of satisfaction required to effect redemption by creditor. 1464. What evidence a redeeming judgment creditor must furnish. 1465. Id.; as to mortgage creditor. 1466. Id.; as to executor or administrator. 1467. Officers to keep papers open to inspection; when to file them. 1468. When redemption takes effect. 1469. Certificate to be given, when redemption made. 1472. To whom conveyance to be executed. 1473. When conveyance made to executor or administrator; effect thereof. 1474. Assignment must be acknowledged and filed. 1475. Under-sheriff or successor to act, if sheriff dies. 1476. Money may be paid, etc., to under-sheriff, or deputy-sheriff, who sold property SEC. 1477. Application of this article to sale by coroner, or person specially appointed, etc. 1478, Id.; where coroner or person appointed dies, etc. § 1430. To what leasehold property this article applies. The expression, "real property," as used in this and the succeeding article, includes leasehold property, where the lessee or his assignee is possessed, at the time of the sale, of at least five years unexpired term of the lease, and also of the building or buildings, if any, erected thereupon. From ch. 462 of 1837, § 1. § 1431. Real property held in trust, when liable to execution. Real property, held by one person, in trust or for the use of another, is liable to levy and sale by virtue of an execution, issued upon a judgment recovered against the person, to whose use it is so held, in a case where it is prescribed by law, that, by reason of the invalidity of the trust, an estate vests, in the beneficiary; but special provision is not otherwise made by law, for the mode of subjecting it to his debts. From 2 R. S. 368, Part 3, ch. 6, tit. 5. § 26. § 1432. Equity of redemption; when not to be sold. The judgment debtor's equity of redemption, in real property mortgaged, shall not be sold by virtue of an execution, issued upon a judgment recovered for the mortgage debt, or any part thereof. From Id., § 31. § 1433. Direction to be indorsed on execution. Where an execution against property, is issued upon a judgment, specified in the last section, to the county where the mortgaged property is situated, the attorney, or other person who subscribes it, must indorse thereupon a direction to the sheriff, not to levy it upon the mortgaged property, or any part thereof. The direction must briefly describe the mortgaged property, and refer to the book and page, where the mortgage is recorded. If the execution is not collected out of the other property, of the judgment debtor, the sheriff must return it wholly or partly unsatisfied, as the case requires. From Id., §§ 32 and 33. § 1434. Notice of sale of real property; how given. The sheriff who sells real property, by virtue of an execution, must previously give public notice of the time and place of the sale. as follows: 1. A written or printed notice thereof must be conspicuously fastened up at least forty-two days before the sale, in three public places in the town or city where the sale is to take place, and also in three public places, in the town or city where the property is situated, if the sale is to take place in another town or city. 2. A copy of the notice must be published at least once in each of the six weeks, immediately preceding the sale, in a newspaper published in the county, or published in an incorporated village, a part of which is within the county: if there is a newspaper published in such county or village; or, if there is none, in the newspaper printed at Albany, in which legal notices are required to be published. From Id., § 34. Am'd by ch. 567 of 1896. See ch. 133 of 1884 repealing acts providing for a State paper. RE § 1435. Property, how described therein. sold. Part may be In each notice, specified in the last section, the real property to be sold must be described with common certainty, by setting forth the name of the township or tract, and the number of the lot, if there is any, or by some other appropriate description. The validity of a sale is not affected by the fact, that the property sold is part only of the property advertised to be sold. From Id., § 35. See § 1251. § 1436. Penalty for irregularity in sale. A sheriff who sells real property, by virtue of an execution, without having given notice thereof, as prescribed in the last two sections, or otherwise than as prescribed in this chapter, forfeits one thousand dollars to the party injured, in addition to the damages which the latter sustains thereby. From Id., § 37 § 1437. Manner of conducting sale. Where real property, offered for sale by virtue of an execution consists of two or more known lots, tracts, or parcels, each lot, tract, or parcel must be separately exposed for sale. If a person who is the owner of, or is entitled by law to redeem, a distinct parcel of the property, of any other description, requires that parcel to be exposed for sale separately, the sheriff must expose it accordingly. No more real property shall be exposed for sale, than it appears to be necessary to sell, in crder to satisfy the execution. From Id., 38. "Distinct parcel;" see § 3343, sub. 16. § 1438. Sheriff to make duplicate certificates of sale. The sheriff who sells real property, by virtue of an execution, must make out, subscribe and acknowledge before an officer authorized to take the acknowledgment of a deed, duplicate certificates of the sale, containing : 1. The name of each purchaser, and the time when the sale was made. 2. A particular description of the property sold. 3. The price bid for each distinct parcel, separately sold. 4. The whole consideration money paid. From Id., § 42. § 1439. Certificate to be recorded, etc. The sheriff must, within ten days after the sale, file one of the duplicate certificates, in the office of the clerk of the county, and deliver another to the purchaser. If there are two or more purchasers, a certificate must be delivered to each. The clerk must immediately record the certificate in a book, kept by him for that purpose, and must index the record, to the name of the judgment debtor. His fees for so doing must be paid by the sheriff, as part of the expenses of the sale. From Id., § 43; and ch. 60 of 1857, § 1. Fees;" see § 3304. § 1440. Title to real property not divested before deed. The right and title of the judgment debtor, or of a person holding under him, or deriving title through him, to real property, sold by virtue of an execution. is not divested by the sale until the expiration of the period within which it can be redeemed as prescribed in this article and the execution of the sheriff's deed. But if the property is not redeemed, and a deed is executed in pursuance of the sale, the grantee in the deed is deemed to have been vested with the legal estate from the time of the sale. And if the title of such grantee or his assigns is adjudged for any reason or cause whatsoever to be null and void, in any action for that purpose brought by the judgment debtor or his assigns, such judgment shall have no force or effect unless within twenty days after the entry of such judgment the plaintiff shall pay to such grantee or his assigns the sum of money which was paid upon the sale with interest from the time of the sale, as prescribed in this article, including the costs and expenses of said defendant in defending the action in which such judgment was recovered, to be adjusted by a judge of the court in which said action is brought, and in the event of plaintiff's failure to pay such purchase-money and expenses within the time aforesaid. said title shall be valid in said grantee, and in case such judgment has heretofore been recovered and an appeal has been taken therefrom which is now pending, and such judgment shall be affirmed on final appeal, the same shall have no force or effect unless within twenty days after the entry of judgment of affirmance the plaintiff shall pay to such grantee or his assigns the sum of money which was paid upon the sale, with interest as aforesaid, including the costs and expenses of the defendant as aforesaid, in prosecuting any appeal from such judgment, and in the event of plaintiff's failure so to do, said title shall be valid in said grantee. From 2 R. S. 373, Part 3, ch. 6, tit. 5, § 61. Am'd by ch. 681 of 1881. See §§ 1446 and 1476. § 1441. Rights of holder of the property during intermediate period. The person entitled to the possession of real property, sold by virtue of an execution, as prescribed in the last section, may, during the period therein specified, use and enjoy the same as follows, without being chargeable with committing waste: 1. He may use and enjoy it in like manner, and for the like purposes as it was used and enjoyed before the sale, doing no permanent injury to the freehold. 2. He may make necessary repairs to a building, or other erection thereupon. But this subdivision does not permit an alteration in the form or structure of the building, or other erection. 3. He may use and improve the land, in the ordinary course of husbandry, but he is not entitled to a crop, growing thereon, at the expiration of the period of redemption. 4. He may apply any wood or timber on the land to the necessary reparation of a fence, building or other erection, which was thereupon at the time of the sale. 5. If he actually occupies the land sold, he may take necessary firewood therefrom for use in his household. From 2 R. S. 336, Part 3, ch. 5, tit. 5, § 22. § 1442. Order to prevent waste; when and how applied for. If, at any time during the period allowed for redemption, the judgment debtor, or any other person in possession of the property sold, commits, or threatens to commit, or makes preparations for committing, waste thereupon, the supreme court, or any justice thereof, within the judicial district, or the county judge of the county, in which the property, or any part thereof, is situated, may, upon the application of the purchaser, or his assignee, or the agent or attorney of either, and proof, by affidavit, of the facts, grant without notice, an order, restraining the wrong-doer from committing waste upon the property. From Id., §§ 23 and 24. REA PRO |