ARTICLE THIRD. SALE, REDEMPTION AND CONVEYANCE OF REAL PROPERTY; RIGHTS AND LIABILITIES OF PERSONS INTERESTED. § 1430. 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. § 1431. 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. 1432. 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. 1433. 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 party unsatisfied, as the case requires. § 1434. 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, if there is one; or, if there is none, in the newspaper printed at Albany, in which legal notices are required to be published.* § 1435. 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. § 1436. 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. § 1437. Where real property, offered for sale by virtue of an execution, consists of two or more known lots, tracts, or *See L. 1884, c. 133, repealing all acts providing for a State paper. 193. 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 order to satisfy the execution. § 1438. 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. 1439. 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. 89 N. Y. 634. § 1440. [Am'd 1881.] The right and title of a judgment 128 Id. 190, 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. § 1441. 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. § 1442. 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. § 1443. If the person, against whom such an order is granted, commits waste in violation thereof, after the service upon him of the order, with a copy of the affidavit upon which it was granted, the court, or judge, upon proof, by affidavit, of the facts, may grant an order, requiring him to show cause, at a time and place therein specified, why he should not be punished for a contempt. § 1444. If, upon the return of the order to show cause, it satisfactorily appears, that the person, required to show cause, has violated the former order, the court or judge may either punish him, as prescribed by law, for the punishment of a contempt of a court of record, other than a criminal contempt; or may grant a warrant, directed to the sheriff of the county, reciting the former order, and the violation thereof, and commanding the sheriff to commit the wrong doer to close confinement, for a term specified therein, not more than one A person thus committed cannot be admitted to the liberties of the jail. year. 81445. The warrant may be superseded, and the prisoner discharged, by an order, in the discretion of the court or judge committing him, upon his executing, to the person who applied for the warrant, an undertaking, in a sum fixed, and with sureties approved, by the court or judge, to the effect, that he will pay any judginent, which the applicant, or his assignee, or other representative, may recover against him, by reason of any waste theretofore or thereafter committed on the property; and upon his paying to the applicant, for the costs and expenses of the proceedings, a sum, fixed by the court or judge. 127 N. Y. 315. 32 Hun, 624. § 1446. Within one year after the sale of real property, by virtue of an execution, a person, specified in the next seetion, may redeem it, by paying to the purchaser, his executor, administrator, or assignee, or to the sheriff who made the sale, for the use of the person so entitled thereto, the sum of money which was paid upon the sale, with interest from the time of the sale, at the rate of ten per centum a year. § 1447. The redemption specified in the last section, may be made, either by the judgment debtor, whose right and title were sold, or by his heir, devisee or grantee, who has acquired, by inheritance, devise, deed, sale, by virtue of a mortgage or of an execution, or by any other means, an absolute title to the property proposed to be redeemed; or, in a case specified in section one thousand four hundred and fifty-eight or one thousand four hundred and fifty-nine of this act, to a portion thereof. § 1448. Upon payment being made, by a person entitled to redeem real property, as prescribed in the last two sections, the sale of the property redeemed, and the certificates of the sale as far as they relate thereto, become null and void. § 1449. Real property, sold by virtue of an execution, which remains, at the expiration of one year after the sale, unredeemed by the person or persons entitled to redeem it, as prescribed in the last three sections, may be redeemed, within three months after the expiration of the year, by the creditors specified, and upon the terms and in the manner prescribed, in the following sections of this article. § 1450. In a case specified in the last section, a creditor, having in his own name, or as executor, administrator, as signee, trustee, or otherwise, a judgment rendered, or a mortgage duly recorded, at any time before the expiration of fifteen months from the time of the sale, which is a lien upon the real property sold, may redeem that property, by paying the sum of money, which was paid upon the sale thereof, with interest at the rate of seven per centum a year from the time of the sale, and executing a certificate of satisfaction, as prescribed in section one thousand four hundred and sixty three of this act. § 1451. Where a creditor has redeemed real property, as prescribed in the last section, any other creditor, who might have redeemed it from the purchaser, as therein prescribed, may redeem it from the first redeeming creditor, as follows: 1. He must reimburse to the first redeeming creditor, his executor, administrator, or assignee, the sum paid by him to redeem the property, with interest at the rate of seven per centum a year, from the time of his redemption. 2. He must execute a certificate of satisfaction, relating to his judgment or mortgage, in like manner as the first redeeming creditor was required to do. 3. If the judgment or mortgage, by virtue of which the first creditor redeemed, is prior to the judgment or mortgage of the second creditor, the second creditor must also pay to the first creditor, the sum specified in the certificate of satisfaction, executed by him upon his redemption, with interest at the rate of seven per centum a year, from the time of his redemption; unless the first redeeming creditor's judgment, or mortgage had ceased, when he redeemed, to be a lien as against |