years after his death by the surrogate's court of the county in which the decedent resided at the time of his death, or if the decedent resided out of the state at the time of his death, and letters testamentary or letters of administration have not been granted within the same time by the surrogate s court of the county in which the property on whicn the judgment is a lien is situated, such court may grant the decree where it appears that the decedent did not leave any personal property within the state upon which to administer. In such case the lien of the judgment existing at the decedent's death continues for three years and six months as aforesaid. Provided, however, that such judgment lien, existing at the decedent's death, upon the decedent's real property, or some portion thereof, may be enforced and payment thereof obtained during the said three years after granting of letters testamentary, or letters of administration, by the proceeding provided and prescribed by title five of chapter eighteen of this act. But this section shall not apply to real estate which shall have been conveyed, or hereafter may be conveyed by the deceased judgment debtor during his lifetime, if such conveyance was made in fraud of his creditors or any of them, and any judgment creditor of said deceased, against whose judgment said conveyance shall have been, or may hereafter be, declared fraudulent by the judgment and decree of any court of competent jurisdiction, may enforce his said judgment against such real property, with like effect as if the judgment debtor was living, and it shall not be necessary to obtain the leave of any court or officer to issue such execution, and the same may be issued at any time to the sheriff of the county where such property is or may be situated. The person issuing such execution, however, shall annex thereto a description of the real estate against which the same is sought to be enforced. as aforesaid, and shall indorse on said execution the words "issued under section thirteen hundred and eighty of the Code of Civil Procedure," whereupon said sheriff shall enforce said execution as therein directed, against the property so described, and not against any other property, either real or personal, and all provisions of law relating to the sale and conveyance of real estate on execution and the redemption thereof shall apply thereto. From ch. 295 of 1850. Am'd by ch. 542 of 1879; ch. 514 of 1885; ch. 515 of 1890, and ch. 734 of 1894. See 2749. § 1381. Leave, how obtained. Leave to issue an execution as prescribed in the last section, must be procured as follows: 1. Notice of the application to the court from which the execution is to be issued, for an order granting leave to issue the execution, must be given to the person or persons whose interest in the property will be affected by a sale by virtue of the execution, and also to the executor or administrator of the judgment debtor. The general rules of practice may prescribe the manner in which the notice must be given; until provision is so made therein, it must be served either personally or in such manner as the court prescribes in an order to show cause. Leave shall not be granted, except upon proof by affidavit, to the satisfaction of the court, that the judgment remains wholly or partly unsatisfied. 2. For the purpose of procuring a decree from the surrogate's court granting leave to issue the execution, the judgment creditor must present to that court a written petition, duly verified, setting forth the facts, and praying for such a decree; and that the persons specified in the first subdivision of this section, may be cited to show cause why it should not be granted. Upon the presentation of such a petition the surrogate must issue a citation accordingly, which said citation may be served in the same manner as is provided in the first subdivision of this section for the service or giving of a notice to the parties or persons therein mentioned, and, if the general rules of practice of the supreme court do not provide for a mode of giving such notice, such citation must be served in such manner as the surrogate by order may prescribe, or as is otherwise provided by law; and, upon the return thereof, he must make such a decree in the premises as justice requires. Am'd by ch. 82 of 1889. § 1382. Time of stay by order, etc., not reckoned under this title. The time during which the person, entitled to enforce a judgment, is stayed from enforcing it, by the provision of a statute, or by an injunction or other order, or in consequence of an appeal, is not a part of the time, limited by this title, for issuing an execution thereupon, or for making an application for leave to issue such an execution. § 1383. Execution against surviving judgment debtors. The last six sections do not affect the right of a judgment creditor to enforce a judgment, against the property of one or more surviving judgment debtors, as if all the judgment debtors were living. In that case, an execution must be issued in the usual form; but the attorney for the judgment creditor must indorse thereupon, a notice to the sheriff, reciting the death of the deceased judgment debtor, and requiring the sheriff not to collect the execution, out of any property which Lelonged to him. § 1384. Sale on execution, etc., when and how conducted. A sale of real or personal property, by virtue of an execution, or pursuant to the directions contained in a judgment or order, must be made at public auction, between the hour of nine o'clock in the morning and sunset. The sheriff to whom an execution is issued shall at any time before the sale of the personal property levied on by him, on the written request of any person who is a creditor of the person against whom the writ was issued under which the sheriff levied upon the property, exhibit to such creditor the personal property so levied upon under said writ and permit an inspection thereof by such creditor or his agent. From 2 R. S. 369, Part 3, ch. 6, tit. 5, § 36. Am'd by ch. 739 of 1894. § 1385. Penalty for taking down or defacing notice of sale. A person who, before the time fixed for the sale in a notice of the sale of property, to be made by virtue of an execution, wilfully takes down or defaces such a notice put up by the sheriff, or by his authority, forfeits fifty dollars to the judgment creditor and the same sum to the judgment debtor; unless the notice was defaced or taken down, with the consent of the person seeking to enforce the forfeiture, or the execution was previously satisfied. From Id., § 39. § 1386. Validity of sale, when not affected by sheriff's default, etc. An omission by the sheriff to give notice, as required by law, or the taking down or defacing of a notice, when put up, does not *effect the validity of a sale, made by virtue of an execution, to a purchaser in good faith, without notice of the omission or offence. From Id., § 40. So in the original. § 1387. Purchases on such sales, by certain officers, prohibited. The sheriff, to whom an execution is directed, or the under-sheriff or deputy-sheriff, holding an execution, and conducting a sale of property by virtue thereof, shall not, directly or indirectly, purchase any of the property at the sale. A purchase made by him, or to his use, is void. From Id., § 41. § 1388. When execution to be enforced by under-sheriff. Where the sheriff, to whom an execution is delivered, dies, is removed from office, or becomes otherwise disqualified to act, before the execution is returned, his under-sheriff must proceed upon the execution, as the sheriff might have done. If there is no under-sheriff, the court, from which the execution issued, may designate a person to proceed thereupon; who may complete the same, as an under-sheriff might have done. The person so designated must give such security as the court directs. He is deemed an officer; and is subject to the same obligations and liabilities, and has the same power and authority in relation to the object of his appointment, as a sheriff, and is entitled to fees accordingly. But this section does not apply in a case where special provision is otherwise made by law, for the enforcement of an execution after the death, removal from office, or other disqualification of the sheriff, or under-sheriff. From 2 R. S. 374, Part 3, ch. 6, tit. 5, §§ 65 and 66 (2 Edm. 388). TITLE II. Execution against property. ARTICLE 1. Property exempt from levy and sale. 2. Lien of an execution upon personal property; levy upon and sale of personal property. Rights of indemnitors of sheriff. 3. Sale, redemption, and conveyance of real property; rights and lia bilities of persons interested. 4. Remedies for failure of title to real property sold, and to enforce contribution. ARTICLE FIRST. Property exempt from Levy and Sale. SEC. 1389. Certain special exemptions not affected by this article. 1390. What personal property is exempt, when owned by a householder. 1391. Additional personal property exempt in certain cases. 1392. Woman entitled to exemption as a householder. 1393. Military pay, rewards, etc., exempt from execution and other legal proceedings. 1394. Right of action for taking, etc., exempt property. 1395. Burying ground; when exempted. 1396. How exempt burying ground designated. 1397. Homestead; when exempted. 1398. How exempt homestead designated. 1399. Married woman's homestead; when exempted. 1400. When exemption to continue after owner's death. 1401. Exemption; when not affected by temporary suspension of residence. 1403. Id.; how proceeds to be marshalled when property is sold. § 1389. Certain special exemptions not affected by this article. The enumeration, in this article, of the property which is exempt from levy and sale by virtue of an execution, does not repeal any special provision of law, relating to such an exemption, which. by its terms, is applicable only to a particular class of persons, or corporations, or to a particular locality, or otherwise to a special case. § 1390. What personal property is exempt, when owned by a householder. The following personal property, when owned by a householder is exempt from levy and sale by virtue of an execution, and each movable article thereof continues to be so exempt, while the family, or any of them, are removing from one residence to another: 1. All spinning wheels, weaving looms, and stoves, put up or kept for use in a dwelling-house; and one sewing machine with its appurte nances. 2. The family bible, family pictures and school books, used by or in the family; and other books, not exceeding in value fifty dollars, kept and used as part of the family library. 3. A seat or pew, occupied by the judgment debtor or the family, in a place of public worship. 4. Ten sheep, with their fleeces, and the yarn or cloth manufactured therefrom; one cow; two swine; the necessary food for those animals; all necessary meat, fish, flour, groceries, and vegetables, actually provided for family use, and necessary fuel, oil and candles, for the use of the family for sixty days. 5. All wearing apparel, beds, bedsteads and bedding, necessary for the judgment debtor and the family; all necessary cooking utensils; one table; six chairs; six knives; six forks; six spoons; six plates; six tea cups; six saucers; one sugar dish; one milk pot; one tea pot; one crane and its appendages; one pair of andirons; one coal scuttle; one shovel; one pair of tongs; one lamp and one candlestick. 6. The tools and implements of a mechanic, necessary to the carrying on of his trade, not exceeding in value twenty-five dollars. From 2 R. S. 367, Part 3, ch. 6, tit. 5, § 22 (2 Edm. 380), as amended by ch. 152 of 1860. Am'd by ch. 112 of 1891. § 1391. Additional personal property exempt in certain cases. In addition to the exemptions, allowed by the last section, necessary household furniture, working tools and team, professional instruments, furniture and library, not exceeding in value two hundred and fifty dollars, together with the necessary food for the team, for ninety days, are exempt from levy and sale by virtue of an execution, when owned by a person, being a householder, or having a family for which he provides, except where the execution is issued upon a judgment, recovered wholly upon one or more demands, either for work performed in the family as a domestic, or for the purchase-money, of one or more articles, exempt as prescribed in this or the last section. Where a judgment has been recovered wholly for necessaries sold, or work performed in a family as a domestic, or for services rendered for salary owing to an employe of the judgment debtor, and where an execution issued upon said judgment has been returned wholly or partly unsatisfied and where 386 |