10, 14, 15, 19, 22, 34-42, 46, 47; DAMAGES, 3; DEDICATION, 2; DEEDS, 5; EQUITY, 3; EXECUTIONS, 24; GUARDIAN AND WARD, 7; INSANITY; JUDG- MENTS, 4; LIBEL, 1, 2; NEGOTIABLE INSTRUMENTS, 10; NEw Trial; PARTNERSHIP, 1; PLEADING AND PRACTICE, 29, 32, 38, 39; RECEIPTS, 2; STATUTE OF LIMITATIONS, 8; TRESPASS, 1, 4, 5; TRUSTS AND TRUSTEES, 4; USURY, 1; WILLS, 13–15, 30, 31; WITNESSES.
See PLEADING AND PRACTICE, 32, 33.
1. EXECUTION UPON JUDGMENT RECOVERED After Death of JUDGMENT DEBTOR is void, and a purchaser under the execution against the estate of deceased acquires no title. Swink v. Snodgrass, 190.
2. IN PROCEEDING OF ILLEGALITY which resists execution, the rightfulness of the judgment is conceded and can not be attacked. Rodgers v. Evans, 390. & AFTER ACTUAL RETURN OF FIRST EXECUTION, before the return day, there would be no irregularity, much less any invincible legal obstacle, in issuing again the same or another execution before the return day. Pen- nington v. Yell, 262.
SHERIFF CAN NOT REQUIRE Indemnity BEFORE LEVYING BECAUSE PROPERTY IS IN DISPUTE, but by common law he could summon jury to try right of property taken by him in execution, when the title was doubtful, or it was claimed by a third person; and if the verdict was that the property belonged to a third person, he was justified in delivering it up; the con- trary verdict, however, did not protect him against the suit of the true Owner. Our statute, however, has provided, that a verdict against the claimant of the property shall be a full indemnity to the sheriff in pro- -ceeding to sell, and if the verdict be for the claimant he shall sell, if Bufficiently indemnified by the plaintiff in execution. Id. LEGAL PRESUMPTIONS MUST BE BASED UPON FACTS, and can not be based upon presumptions; consequently, where the sheriff does not levy the whole debt, there will not be any presumption that there was no more property in his county, as this would be basing a presumption upon the presumption that the sheriff did his duty. Id.
6. WHILE DOWER REMAINS UNASCERTAINED, and until there has been an act- ual admeasurement by metes and bounds, it is a mere potential interest, amounting to nothing more than a chose in action, and is not subject to seizure and sale by execution at law. Id.
7. PHYSICIAN'S HORSE IS LIABLE TO SEIZURE ON EXECUTION. Hanna v. Bry, 606.
8. JUDGMENT MAY BE LEVIED UPON UNDER EXECUTION by a notification of seizure by the sheriff to the judgment debtor. Id.
9. SHERIFF HAS NO RIGHT TO SEIZE RECORD OF JUDGMENT and disturb the possession of the clerk, its legal custodian. Id.
10. LANDS AND TENEMENTS ARE SUBJECT TO PAYMENT OF DEBTS, and are liable to be taken in execution and sold in this state. Union Bank v. Powell, 367.
11. PURCHASER AT SALE MADE UNDER FINAL DECREE generally takes a good title, though the decree be afterwards reversed. Clark's Heirs v. Far row, 552.
12. DEBTOR'S INTEREST IN PERSONAL ESTATE SHOULD FIRST BE APPLIED to tho payment of a judgment against him, and if that be insufficient to satisfy it, then his interest in real estate should be sold. Greer v. Wright, 111.
13. LIEN WHICH PLAINTIFF Acquires upon Goods of Defendant, by the delivery of an execution to the sheriff, does not vest a title in him, but simply a right to subject the property to the satisfaction of his debt. Otey v. Moore, 173.
14. BY SUSPENDING RIGHT TO HAVE EXECUTION ISSUED, the lien of the prevailing party in an action, upon the goods of the judgment debtor, is also suspended. Id.
15. DURING SUCH SUSPENSION, BONA FIDE PURCHASER FOR VALUE acquires title superior to the lien of judgment creditor. Id.
16. REASONABLE NOTICE TO DEBTORS TO CHOOSE APPRAISER will be presumed by the court from the sheriff's return that such notice was given. Dwinel v. Soper, 643.
17. SHARES OF JOINT DEBTORS HOLDING ESTATE IN COMMON need not be ap praised separately. Id.
18. SELLING TOO MUCH LAND UNDER LEVY, by the value of one cent and three mills, will not vacate the levy. Id.
19. SUCH LEVY UPON PROPERTY AS DOES NOT AMOUNT TO SATISFACTION is no bar to a further execution on the judgment. Doe ex dem. Mace v. Dutton, 510.
20. LEVY ON PROPERTY NOT SHOWN TO BELONG TO EXECUTION DEFENDANT is not a satisfaction of the judgment. Id.
21. ISSUE OF SUBSEQUENT EXECUTION BEFORE RETURN TO FORMER ONE is made, or other proceedings to vacate the levy are had, is at most an error which renders the execution voidable, but not void. Id.
22. SALE UNDER AN EXECUTION WHICH IS VOIDABLE only, but not void, is valid even when made to a purchaser with notice of the fact, where ther is no fraud. Id.
23. EXECUTION MERELY VOIDABLE MAY BE SET ASIDE ON MOTION by the de- fendant, but until set aside all acts done under it are valid, as well in rela- tion to the execution plaintiff as to strangers. And if the execution debtor does not procure the process to be set aside, he will be presumed to have waived the errors. Id.
24. IF SHERIFF IS AUTHORIZED TO RECEIVE BANK PAPER IN SATISFACTION of the execution, its receipt by the sheriff amounts to a satisfaction of the debt, and the return is competent evidence of payment; otherwise it is inadmissible. Randolph v. Ringgold, 235.
25 SHERIFF DERIVES HIS ENTIRE AUTHORITY AS COLLECTOR under the law as the ministerial officer of the court. The execution is his legal warrant of attorney, without which he is totally unauthorized to act. It limits and prescribes his duties, and confers a special, not a general, authority to collect. Id.
26. WHERE INSTRUCTION TO "DEMAND GOOD MONEY" WAS INDORSED ON EXECUTION, the sheriff has no authority to receive depreciated Arkansas paper in payment; and the sheriff's return that he has received such paper is not evidence of payment. Id.
27. WHERE SHERIFF FAILS TO COLLECT DEBT IN OBEDIENCE TO COMMAND of his writ, which requires that he should "demand good money," the
plaintiff has an election to pursue the sheriff for a breach of his official duty, or he may enforce payment from the debtor upon the original debt. Id.
28. SALE BY SHERIFF AFTER REturn Day of WRIT OF EXECUTION IS VOID, and a purchaser at such sale acquires no title. Smith v. Mundy, 221. 29. SALE UNDER EXECUTION OF QUARTER-SECTION OF WILD LAND will not be set aside for the sole reason that it was not divided and sold in sepa rate parcels, although it was sold at a great sacrifice. Greenup v. Stoker, 474.
30. MERE INADEQUACY OF PRICE is not Sufficient to Set ASIDE SALE under execution, which was conducted fairly and judiciously. Id.
31. CORONER MAY, IN CASE OF VACANCY IN OFFICE OF SHERIFF, COMPLETE EXECUTION of process which has been directed to and partly executed by the sheriff before the vacancy occurred. Id.
32. SHERIFF SELLING UNDER EXECUTION IS NOT OBLIGED TO TAKE BID of an irresponsible person. Hobbs v. Beavers, 500.
33. REFUSAL OF SHERIFF TO CRY BID Made by STRANGER, unless the latter would make himself known or give some evidence of his ability to con- form to the terms of the sale, does not render the sale void on account of the property being sold to a person who was not the highest bidder. Id.
34. SHERIFF IS Agent, Appointed BY LAW, OF BOTH Plaintiff and Depend- ANT, for the sale of defendant's property, and a purchase of such prop- erty made by him is absolutely void, and yields to the title of another acquired by a subsequent sale of the same property. Harrison v. Mc- Henry, 435.
35. SHERIFF CAN NOT ACT AS DISCRETIONARY AGENT to purchase at his own sale. Id.
36. Sale of Property under JUNIOR FI. FA., in this state, defeats the lien of an older judgment upon the same property. The older judgment may come in and receive the money raised by the sale. Id.
87. IF HIRE OF PROPERTY WILL NOT, WITHIN REASONABLE TIME, SATISFY JUDGMENT, a sufficient quantity of it may be sold to satisfy said judg. ment. Bradford v. Greenway, 203.
See ATTORNEY And Client, 5, 7, 9, 10; Co-TENANCY, 3; DEBT; ESTOPPEL, 1, 3,5; EXECUTORS AND ADMINISTRATORS, 6; FRAUDULENT CONVEYANCES, 6, 7; MORTGAGES, 3; SURETYSHIP, 6; TROVER, 1, 2; WITNESSES, 13.
EXECUTORS AND ADMINISTRATORS.
1. PROBATE JUDGE HAS NOT JURISDICTION to grant administration upon the estate of a person whose domicile at the time of his decease was not within the county in which he is judge. Moore v. Philbrick, 642.
2. WANT OF JURISDICTION APPEARING IN THE SAME RECORD which shows a grant of adminstration is conclusive against the validity of such grant. Id.
3. In Case there should be Failure of Personal Assets, it is the duty of the executor or administrator to make application for the sale of the decedent's realty in the mode pointed out by the act of March 4, 1841. Union Bank v. Powell, 367.
4. EXECUTORS AND ADMINISTRATORS SELLING PROPERTY OF DECEDENT UNDER AUTHORITY OF LAW have no power to bind the estate by war
ranty, though they may, if they choose, bind themselves by a personal obligation of this kind. Worthy v. Johnson, 399.
PURCHASES MADE BY SUCH TRUSTEES AS EXECUTORS, ADMINISTRATORS, OR SHERIFFS AT THEIR OWN SALES, and on their own account, are void. able only, and not void. Id.
6. STATUTORY PROVISIONS AUTHORIZING EXECUTORS AND ADMINISTRATORS TO MAKE SALES of property must be complied with in every essential direction, otherwise the interest of heirs and creditors will not be pre- cluded. And although this rule may be somewhat relaxed in favor of innocent purchasers, it will operate with full force against executors and administrators, purchasing at their own sales and against those subse- quently deriving title from them through an execution sale. Id.
7. TO SET ASIDE PURCHASES MADE BY EXECUTORS AT THEIR OWN SALE, heirs must resort to equity. So, also, when it is necessary to sue other. wise than through the legal representative of the estate. Id.
8. WHERE EXECUTOR HOLDS IN HIS HANDS MONEY DERIVED FROM SALE of lands of his testator, which is disaffirmed, the purchaser at such sale is entitled to a decree against him for the amount so held. Hudgin v. Hulgin, 124.
9. ADMINISTRATOR DE BONIS NON IS ENTITLED TO ADMINISTRATION OF ALL GOODS of the deceased remaining unadministered. Swink v. Snodgrass, 190.
10. COLLUSION BETWEEN ADMINISTRATOR AND VENDER OF GOODS OF Dr. CEASED renders the sale void. Id.
11. PURCHASER FROM ADMINISTRATOR Acting in VIOLATION OF HIS TRUST, with knowledge of such violation, acquires no title. Id.
12. ACTION AT LAW MAY BE BROUGHT BY ADMINISTRATOR DE BONIS NON to set aside a fraudulent sale by the administrator in chief, where it is not necessary to join the distributees or creditors of the estate. Id. Bee BONA FIDE Purchasers, 2; Estates of Decedents; Judgments, 1, 2 15; SPECIFIC Performance, 3; SUBROGATION; WITNESSES, 10.
See Co-TENANCY, 3; Statute of Limitations, 9, 10.
See INSANITY, 1, 4; WITNESSES, 11, 12
EX POST FACTO LAWS.
See CONSTITUTIONAL LAW, 6, 8.
Bee ATTORNEY AND CLIENT, 13; LICENSES.
FEMES COVERT.
See MARRIED WOMEN; WILLS, 28.
FEMES SOLE.
See MARRIED WOMEN. 3.
See JURY AND JURORS, 8-10,
1. ALL MOVABLE FIXTURES PERMANENTLY ATTACHED to a building become immovable. Mackie v. Smith, 615.
2. MIRRORS WILL BE CONSIDERED AS FIXTURES when they have been placed in recesses in the walls made to receive them, and which when removed would leave the recesses in a rough and unfinished state. Id.
& MIRRORS WHEN PERMANENTLY ATTACHED to the walls will pass with a sale of the building to the purchaser. Id.
FOREIGN ASSIGNMENTS.
See ASSIGNMENTS FOR BENEFIT OF CREDITORS, 5,
FOREIGN CORPORATIONS.
See STATUTE OF LIMITATIONS, 6-8.
See CONFLICT OF LAWS; EVIDENCE, 12
FOREIGN RECORDS.
See EVIDENCE, 10, 11.
FOREIGN WILLS.
See EVIDENCE, 10, 11.
FORMER CONVICTION.
See CRIMINAL LAW, 6.
FORTHCOMING BONDS.
See ATTORNEY and Client, 10, 11.
1. SUBSTANTIAL FRAUD, ENTERING INTO BASIS AND FRAMEWORK OF CONTRACT, without which it would not have been made, avoids the contract in favor of the party misled, whether the fraud originated with the principal, or with his agent and was adopted by the principal. Fitzsimmons v. Joslin,
2 PARTY IS CHARGED AS PRINCIPAL IN FRAUD when he takes advantage of unauthorized representations of third parties to obtain an unjust contract, or adopts a contract made for his benefit through instrumentality of such representations. Id.
See EVIDENCE, 31; EXECUTIONS, 22; EXECUTORS AND ADMINISTRATORS, 10–12; FRAUDULENT CONVEYANCES; JUDGMENTS, 23; NEGOTIABLE INSTRUMENTS, 29, 32, 35; SALES, 5, 7-9; SURETYSHIP, 1, 3; Trust Deeds; WILLS, 13– 15; WITNESSES, 10.
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