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.

For purchase money of land. If the answer in an action for the recovery of a debt contracted for the purchase of land does not deny that the debt was so contracted, or if the jury should find that the debt was so contracted, it should be the duty of the court to have embodied in the judgment that the debt sued on was one contracted for the purchase money of said land, describing it briefly; and it shall also be the duty of the clerk to set forth in the execution that the said debt was one contracted for the purchase of said land, the description of which shall be set out briefly as in the complaint.

Code, ss. 234, 235, 236, 448; C. C. P., s. 261; 1868-9, c. 148; 1879, c. 217.

628. Variance between judgment and. Whenever property may have been sold by an officer by virtue of any execution or other process commanding the sale thereof, no variance between the execution and the judgment whereon the same was issued, in the sum due in the manner in which it is due or in the time when it is due, shall invalidate or affect the title of the purchaser of such property.

Code, s. 1347; R. C., c. 44, s. 13; 1848, c. 53.

629. What may be sold under. The property, estate and effects of the judgment debtor, not exempted from sale under the constitution and laws of this state, may be levied on and sold under execution as hereinafter prescribed:

1. The goods, chattels, houses, lands, tenements and other hereditaments, and real estate belonging to him.

2. All leasehold estates of three years duration or more, owned by him.

3. The equity of redemption, and legal right of redemption, in lands, tenements, rents or other hereditaments, pledged or mortgaged by him.

4. Any lands, tenements, rents and hereditaments or any goods and chattels of which any person shall be seized or possessed in trust for him.

Code, s. 450; R. C., c. 45, ss. 1-5; 5 Geo. II., c. 7, s. 4; 1777, c. 115, s. 29; 1812, c. 830, ss. 1. 2; 1822, c. 1172.

Note. For statute forbidding sale of tenant's crop under execution, see s. 1998. For execution against husband's interest in wife's land, see s. 2097.

630. Sale of trust estates; purchaser's title. Upon the sale under execution of the estates mentioned in subdivision four of the preceding section the sheriff shall execute a deed to the purchaser, and the purchaser thereof shall hold and enjoy the same

freed and discharged from all encumbrances of the person so seized or possessed in trust as aforesaid.

Code, s. 452; R. C., c. 45, s. 4; 1812, c. 830.

631. Sheriff's deed on sale of equity of redemption. The sheriff selling the equity of redemption and legal right of redemption, as set forth in section six hundred and twenty-nine, subdivision three, shall set forth in the deed to the purchaser thereof that the said estates were under mortgage at the time of judgment, or levy in the case of personal property and sale.

Code, s. 451; R. C., c. 45, s. 5; 1812, c. 830, s. 2; 1822, c. 1172.

632. Growing crops exempted from. No execution shall be levied on growing crops until the same are matured.

Code, s. 453; R. C., c. 45, s. 11; 1844, c. 35.

633. Forthcoming bond for personal property. If any sheriff or other officer who may have levied an execution or other process upon personal property, shall permit the same to remain with the possessor, such officer may take a bond for the forthcoming thereof to answer the said execution or process, which bond shall be attested by a credible witness; but the officer shall nevertheless, in all respects, remain liable as heretofore to the plaintiff's claim.

Code, s. 463; R. C., c. 45, s. 21; 1807, c. 731, s. 3; 1828, c. 12, s. 2.

634. Surety furnished list of property; possession his; sale in thirty days. When such bond shall be taken the officer shall specify therein the property levied upon, and shall furnish to the surety a list of the property in writing under his hand, attested by at least one credible witness, and stating therein the day of sale; and the property so levied upon shall be deemed in the custody of the surety, as the bailee of the officer; and all other executions thereafter levied on said property shall create a lien on the same from and after the respective levies, and shall be satisfied accordingly out of the proceeds of the sale of said property; but the officer thereafter levying shall not take the property out of the custody of the surety: Provided, that in all such cases, sales of chattels shall take place within thirty days after the first levy; and, if sale shall not be made within the time aforesaid, any other officer who may have levied upon the property may seize and sell the same.

Code, s. 464; R. C., c. 45, s. 22; 1844, c. 34; 1846, c. 50.

635. Summary remedy on forthcoming bond. If the condition of such bond be broken, the sheriff or other officer, on giving ten days' previous notice, in writing, to any obligor therein, may, on motion, have judgment against him in a summary manner, before the superior

court, or before a justice of the peace as the case may be, of the county in which such officer may reside, for all such damages as said officer may have sustained, or be adjudged liable to sustain, not exceeding the penalty of the bond, to be ascertained by a jury, under the direction of the court or justice.

Code, s. 465; R. C., c. 45, s. 23; 1822, c. 1141.

636. Returns of, entered on judgment docket; penalty for clerk's tailure. When any execution shall be returned, the return of the sheriff or other officer shall be noted by the clerk on the judgment docket; and when the same shall be returned satisfied, or partially satisfied, it shall be the duty of the clerk of the court to which the same is returned to send a copy of such last mentioned return, under his hand, to the clerk of the superior court of each county in which such judgment is docketed, whose duty it shall be to note such copy in his judgment docket, opposite said judgment, and to file said copy with the transcript of the docket of said judgment in his office. Any clerk failing to send a copy of the payments on said execution or judg ment to the clerks of the superior court of the counties wherein a transcript of the judgment has been docketed, and any clerk failing to note said payment on the judgment docket of his court, shall, on motion, be fined one hundred dollars nisi for said failure, and said conditional judgment shall be made absolute upon notice to show cause at the succeeding term of the superior court of his county.

Code, s. 445; 1871-2, c. 74, s. 2; 1881, c. 75.

637. Cost of keeping horses, etc. The court or justice shall make a reasonable allowance to officers for keeping and maintaining horses, cattle, hogs, or sheep, and all other property, the keeping. of which may be chargeable to them, taken into their custody under legal process; and such allowance may be retained by the officers out of the sales of the property, in preference to the satisfaction of the process under which the property was seized or sold. Code, s. 466; R. C., c. 45, s. 25; 1807, c. 731.

638. Verified account of expenses of keeping filed. Every such officer shall make out his account and if required shall give the debtor or his agent a copy thereof, signed by his own hand, and shall return the account with the execution or other process, under which the property has been seized or sold, to the justice or the court to whom the execution or process is returnable, and shall swear to the correctness of the several items therein set forth; otherwise he shall not be permitted to retain the same.

Code, s. 467; R. C., c. 45, s. 26; 1807, c. 731, s. 2.

639. Purchaser of defective title; remedy against defendant. Where property, real or personal, shall be sold on any execution or decree, by any officer authorized to make the sale, and the sale is legally and in good faith made, and such property be not the property of the person against whose estate such execution or decree may have issued, by reason of which the purchaser may have been deprived of the same property, or may have been compelled to pay damages in lieu thereof to the owner; in every such case the purchaser, his executors or administrators, may sue the person against whom such execution or decree may have issued, or the person legally representing him, in a civil action, and recover such sum as he may have paid for the property, with interest from the time of payment: Provided, that such property, if the same is personal property, be present at the sale, and actually delivered to the purchaser.

Code, s. 468; R. C., c. 45, s. 27; 1807, c. 723.

640. Costs on execution paid to clerk; penalty. The sheriff or other officer shall pay the costs on all executions which shall be satisfied in whole or in part, to the clerk of the court from which the execution issued, and tó no other person, on the second day of the term of the court; and any such officer making default herein shall forfeit and pay forty dollars for the benefit of the party aggrieved, under the same rules that are provided by law for amercing sheriffs. Code, s. 472; R. S., c. 76, s. 5; 1822, c. 1149.

NOTE. For execution where corporations, stock, etc., are affected, see ss. 12121218.

XXVIII. EXECUTION SALES.

641. How advertised; cost of newspaper publication. No real property shall be sold under execution, deed in trust, mortgage, or other contract hereafter executed, until notice of said sale shall be posted at the courthouse door and three other public places in the county for thirty days immediately preceding such sale, and also published for four weeks in some newspaper published in the county, if a paper is published in the county: Provided, the cost of such newspaper publication shall not exceed three dollars, to be taxed. as cost in the action, special proceeding or proceeding to sell.

Code, s. 456; 1885, c. 38; 1905, c. 147; 1868-9, c. 237, s. 10; R. C., c. 45, s. 16; 1881, c. 278.

642. Notice of, served on defendant; on governor, when. In addition to the advertisement above required, the sheriff shall in every case, at least ten days before a sale of real property under execution, serve a copy of so much of the advertisement as relates to the real

property of any defendant on him personally, if he be found in the county, or on his agent, if he have a known agent therein, or if he can not be found within the county, and has no known agent therein, but his address be known, by mail to such address; and the date of service shall be ascertained by the usual course of the mail from the place where sent to the place of its address: Provided, that in case of the sale under execution, or under the order of any court, of any property, real or personal, in which the state shall be interested as a stockholder or otherwise, notice in writing shall be served upon the governor and attorney general, at least thirty days before the sale, of the said time and place of sale, and under what process the sale is made, otherwise said sale shall be invalid.

Code, s. 457; 1868-9, c. 237, s. 11; 1876-7, c. 224.

643. Sale days under, or by order of court. All real property sold under execution, or by order of court, shall be sold at the courthouse door of the county in which the property or some part thereof is situate, on the first Monday in any month, or during the first three days of any term of the superior court of said county, unless in the order directing the sale some other place and time is designated; and then it shall be sold as directed in such order, on any day except Sunday or holidays, after advertising the same as required by law.

Code, s. 454; 1876-7, c. 216, ss. 2, 3; 1883, c. 94, ss. 1, 2.

644. Sales between ten and four o'clock. No sale under an execution or decree shall commence before ten o'clock in the morning, or continue after four o'clock in the evening, of the day on which the sale is to be made, except that in towns or cities of more than five thousand inhabitants public sales of goods, wares and merchandise may be continued until the hour of ten o'clock p. m.

Code, s. 459; R. C., c. 45, s. 17; 1794, c. 41.

645. Postponed from day to day. The sheriff or other person making the sale, for the absence of bidders or any other just cause, may postpone the same from day to day, but not for more than six days in all, and upon such postponement he shall post a notice thereof on the courthouse door of his county.

Code, s. 455; 1868-9, c. 237, s. 9.

646. Postponed more than six days validated. All sales of realty made under executions issued prior to March the fifteenth, one thousand nine hundred and one, on judgments regularly obtained in courts of competent jurisdiction, are hereby validated, whether such sales were continued from day to day or for a longer period, not exceeding ten days: Provided, that such executions and sales are in