the manner thereof, and shall appoint some suitable person or persons to make the same; and such sale shall vest the estate sold in the purchaser, freed from the entailment, limitation, or condition. [56 v. 154, 23; S. & C. 551.]

25806. Sale may be had by consent. All parties in interest may appear voluntarily, and consent in writing to such sale; and testamentary guardians, and guardians appointed by the court of probate, may assent, in the place of their wards, to the sale. [56 v. 154, ? 4; S & C. 551.] 25807. Report and confirmation of sale. Deed. All such sales shall be reported to the court authorizing the same; and if, on examination thereof, it appear that the sale was fairly conducted and made, and that the price obtained is the reasonable value of the estate sold, the court shall confirm the sale, and direct a deed of convey ance of the premises sold to be made to the purchaser, on payment of the purchase money or on securing the payment thereof in such manner as shall be approved by the court. [56 v. 154, 5; S. & C. 551.]

25808. How proceeds of sale disposed of. All money arising from sales under this subdivision shall, for purposes of descent, succession, reversion, or remainder, have the same character, and be governed by the same principles, as the estate sold, and shall pass according to the terms of the deed, will, or other instrument creating the estate. [56 v. 154, ? 6; 61 v. 80, ? 1; S. & C. 551; S. & S. 346.]

25809. How proceeds may be invested. Money arising from such sales shall, under the direction and approval of the court, be invested in the certificates of the funded debt of this state or of the United States, or in bonds secured by mortgage on unincumbered real estate situate in the proper county of double the value of the money secured thereby, exclusive of buildings and other improvements, and of timber, mines, and minerals; or the court may order the same to be re-invested in other real estate within this state, under such restrictions as it may prescribe, which investment shall be reported to the court, and subject to its approval and confirmation; the real estate in which the money is re-invested shall, for purposes of descent, succession, reversion, or remainder, have the same character, and be governed by the same

principles, as the estate sold, and shall pass according to the terms of the deed, will, or other instrument creating the estate sold; the court shall appoint competent trustees to invest the money, and manage the same, who shall, from time to time, report to the court their proceedings, and the condition of the fund; and the court shall require of such trustees security for the faithful discharge of their duty; may, from time to time, require additional security; may remove such trustees for cause, or reasonable apprehension thereof; and may accept the resignation of a trustee, and fill a vacancy by a new appointment. [57 v. 25, 27; S. & C. 551.]

25810. Who to receive income and pay taxes and expenses. The net income accruing from sales authorized by this subdivision shall be paid to the person or persons who would be entitled to the use or income of the estate were the same unsold; and all taxes, and the expenses of the investment and management of the fund, shall be paid by the person or persons entitled to the income thereof. [56 v. 154, 2 8; S. & C. 551.]

25811. Such estates may be leased. Upon like proceedings the court may direct that such estates be leased for a term of years, renewable or otherwise, as may appear most beneficial, and upon such terms as appear just and equitable; and the rents and profits shall be paid to the person or persons who might otherwise be entitled to the use and occupancy of the estate, or the income thereof. [56 v. 154, ? 9; S. & C. 552.]

25812. Sale of property given for religious use. When any real estate, except burial grounds or a cemetery, has been donated, bequeathed, or otherwise entrusted to, or purchased by, any person or trustee, for any public religious use, but not to or for the use of any specific or particular religious society or denomination, or when the same has been donated, bequeathed, or entrusted to, or purchased by, a particular religious society or denomination, and has been abandoned for such use, the court of common pleas of the county in which the same is located may, upon good cause shown, upon the petition of any citizen of the vicinity, make an order for the sale of such property, whether the same has been built upon or otherwise improved or not, and may make such order as to costs, and such disposition of the proceeds of the

sale to such religious or other public use, as shall be just, proper, and equitable; and the purchaser thereof shall be invested with as full and complete a title thereto as the character of the original grant for such religious use will allow. [66 v. 126, ?? 1, 2.]

? 5813. Necessary parties to the proceeding. Ali persons who have a vested, contingent, or reversionary interest in such real estate, and the trustees or other temporal officers of any religious society then using the same, shall be made parties to the petition, and be notified of the filing and pendency thereof, as in a civil action. [66 v. 126, ? 2.]

Sales of church property by religious corporations, etc.; see 22 3773-3776, 3787, 3888, 3794-3796, 5776, 5777 (Partition).

CHAPTER XI.

REPLEVIN.

5814. When possession of personal property may be recovered. The possession of specific personal property may be recovered in an action as provided in this chapter. [51 v. 57, ? 174; S. & C. 996.]

Pleading. Plaintiff must allege an interest in himself; a general ownership is sufficient, 26 O. S. 659; a right to immediate possession, 5 O. 93; 2 O. S. 82; unlawful detention on the part of defendant, 2 O. S. 82, and ask for an order of delivery, 2 5816, and damages, 2 5825. A plea of non detinet under the common law practice put both defendant's right of property and damages in issue, 12 O. 112. A general denial under the code puts in issue every material allegation of the petition, and defendant may give evidence of any special matter which amounts to a defense, 2 Bates Pl., etc., 909. Appeal will lie from justice irrespective of amount claimed or recovered, 12 O. S. 548. Sheriff, under a general denial, may make any defense he has, and under it prove his writ and levy on the goods in controversy, 11 Bull 225; see 45 O. S. 657; 19 Bull 245. Injunction to prevent defendant's disposal of property, 1 Bull 234.

The action lies for money, if identifiable, 3 Bull 1122, for exempt property when levied on, 2 Clev. R. 129. It lies by a chattel mortgagee, 3 W. L. M. 306; against buyer at sale on execution against mortgagor, 8 Rec. 705; by mortgagee after condition broken, 26 O. S. 659, 663, but not before when the mortgagor is entitled to retain possession, 5 O. S. 93, unless by the terms of the mortgage the mortgagee may take the property if removed from the mortgagor, 19 O. S. 291. Mortgagor and mortgagee can not jointly sue, 6 Bull 247, nor owners of separate mortgages upon the same chattels, 15 Bull 125. The action lies by officer levying, against judgment debtor, 10 O. S. 488; against an officer levying on the wrong goods without demand, 13 O. 30; 12 O. S. 189; by vendor when goods are fraudulently purchased, 15 0.

200; when title does not pass until payment, 23 O. S. 1; 28 O. S. 630. It does not lie to recover losses by betting, W. 356, nor by finder against owner, 19 O. 29, nor for crops sown after judicial sale, 15 O. S. 351, nor before sufficient time has elapsed to allow of their delivery by tenant, 11 Bull 249. Property in a third person, defeats the action, 2 W. L. M. 155; but assignment for creditors after commencement of action but before service of order of delivery does not, 33 O. S. 523; and replevin from carrier is no defense to consignee's action, 22 O. S. 597. The owner of a chattel sold by a bailee can recover the specific chattel or its value of whomsoever he may find in possession of it, 5 O. 202. Interpleader, 22 5016, 5017. Joinder of actions; not joinable, 1 C. S. C. R. 259, of parties, 5014, p. 33. Judgment limited to value of interest claimed in petition, 42 O. S. 1; 2 C. C. R. 95. Jurisdiction of federal courts, 2-D. 592. Possession by defendant necessary, 7 O. (Pt. 2) 133, may be by his agent, 33 O. S. 523; must exist at time of service, 14 O. S. 73. Substitution of plaintiff in execution for officer, 5018. Title must be recognized at law, 2 W. L. M. 133; is acquired by plaintiff by execution of the writ, 14 O. S. 182; can not lawfully be replevied again, 10 Id. 461; only such as plaintiff claims recoverable, 42 O. S. 1. Wheat in warehouse, 21 Bull 195.

? 5815. Affidavit for order of delivery. An order for the delivery of property to the plaintiff shall be issued by the clerk of the court in which the action is brought, when there is filed in his office an affidavit of the plaintiff, his agent, or attorney, showing:

1. A description of the property claimed.

2. That the plaintiff is the owner of the property, or has an interest therein; and if the ownership or interest is special or partial, the facts shall be stated.

3. That the property is wrongfully detained by the defendant.

4. That it was not taken on process issued against the plaintiff, nor for a tax; or, if taken on such process, that the property was exempt from execution expressly, or upon demand or selection by the plaintiff. [59 v. 25, 2175; S. & C. 545.]

Affidavit may be amended, 1 W. L. M. 280. Two writs may issue on one affidavit, Id. 599. Affidavit to petition may be sufficient as preliminary affidavit, 38 O. S. 657.

25816. Order for delivery. The order for the delivery of the property to the plaintiff shall be addressed and delivered to the sheriff; and it shall contain the names of the parties, and the court in which the action is brought, and the sheriff shall be thereby commanded to take the property, deliver it to the plaintiff, and make return of the order on a day to be named therein. [51 v. 57, 176; S. & C. 998.]

? 5817. When order returnable. The return day of the order of delivery shall be the same as that of the summons. [51 v. 57, ? 177; S. & C. 998.]

5818. How order executed. The sheriff shall execute the order by taking the property therein mentioned; and he shall also deliver a copy of the order to the person charged with the unlawful detention of the property, or leave such copy at his usual place of residence. [51 v. 57, 178; S. & C. 999.]

25819. Plaintiff to give an undertaking. The sheriff shall, except as provided in the next section, deliver the property so taken to the plaintiff, his agent or attorney, when there is executed, by sufficient surety of the plaintiff, a written undertaking to the defendant, in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action, and pay all costs and damages which may be awarded against him; and the undertaking shall be returned with the order. [65 v. 81, 179; S. & S. 546.]

The bond takes the place of the property to the extent of the interest of the defendant in replevin, 10 O. S. 461; 42 O. S. 1. It was held good, though not signed by plaintiff, 1 W. L. M. 599, though signed by the party and one surety when the statute required two or more, 5 0. S. 256; though for less than double the value of the property, 1 W. L. M. 599; or the obligors were not freeholders, 1 H. 24. Justice liable for taking insufficient bond, 6 Bull 247. Obligor's liability is not avoided by showing his signature was procured by fraud of co-obligor, 50. S. 256. Sureties not released by substitution of defendants, 23 O. S. 622. Amendment of bond with obligor's consent, 1 Clev. R. 31.

? 5820. Duty of officer when property consists of heirlooms, etc. When the property replevied consists of an heirloom, personal keepsake, or other article, the value of which consists in whole or in part of its being a relic, model, gift, family picture, painting, or rare production of art or nature, and not wholly in its general marketable character, the sheriff shall retain and safely keep the same, subject to the order of the court, if the defendant, his agent or attorney, within ten days after the same is replevied, serve a written notice upon the officer that he will demand the return of the same upon the final trial of the case, and that he will, at the next term of the court, move for an order requiring the officer to retain the property, subject to the final order of the court; and if the defendant fail to give the notice aforesaid, or