Chapter 14. CLAIMS DUE AND AGAINST THE STATE.

§1. Who May Conduct Proceedings.—The auditor or any other officer or body authorized by law shall cause the proper proceedings to be instituted and prosecuted to enforce payment of any debt or liability due the State.(Code 1849, c. 42, §1; Code 1860, c. 42, §1; Code 1868 c. 35, §1; 1882, c. 18, §1; Code 1923, c. 35, §1.)

§2. Proceedings at Law; Jurisdiction; Venue.—When the proceeding is at law, it may be by motion on twenty days’ notice, or by action; and whether at law or in chancery, it may be brought in any court which would have jurisdiction thereof if the proceeding were brought by an individual, or in the circuit court of the county in which the seat of government is; or, if property or a debt be attached, in the circuit court of the county where such property may be found or the person owing such debt may reside; and it may be in the name of the State, though the liability is created or secured by bond or other instrument, payable to, or covenant or contract with, any public officer or other person or official body acting on behalf of the State.(Code 1849, c. 42, §§2, 3; Code 1860, c. 42, §§2, 3; Code 1868, c. 35, §2; 1872-3, c. 95; 1882, c. 18, §2; Code 1923, c. 35, §2.)

§3. Parties Defendant; Form of Judgment.—The action or motion at law may be against any person indebted or liable in any way whatever to the State, his sureties and his and their personal representatives, or any one or more of them. But a judgment against a personal representative shall only bind him to the extent to which he is accountable for assets of the estate which he represents. If several defendants be proceeded against jointly, judgments may be rendered against any one of them shown to be liable and the proceeding be dismissed as to the others, or judgments rendered in their favor, or the case continued as to them for service of process or notice or other cause. Any party dismissed for want of service of process may be subsequently sued and an unsatisfied judgment against one or more of several persons jointly liable shall not be a bar to any subsequent proceedings against the others.(Code 1849, c. 42, §§4, 5; Code 1860, c. 42, §§4, 5; Code 1868, c. 35, §3; 1882, c. 18, §3; Code 1923, c. 35, §3.)

§4. Expedition of Proceeding.—Courts wherein cases are pending to which the State is a party may hear them before other cases) and expedite the proceeding therein by such rules as to them may seem proper.(Code 1849, c. 42, §7; Code 1860, c. 42, §7; Code 1868, c. 35, §4; 1882, c. 18, §4; Code 1923, c. 35, §4.)

§5. Writ of Fieri Facias; Form; Sale of Real Estate.—In a writ of fieri facias issuing out of any court of record upon a judgment or decree against any person indebted or liable to the State, or against any surety of his, after the words “we command you that of the” the it clerk shall insert the words “goods, chattels and real estate,” and conform the subsequent part of such writ thereto. And under any writ so issued real estate may be taken and sold.(Code 1849, c. 42, §8; Code 1860, c. 42, §8; Code 1868, c. 35, §5; 1882, c. 18, §5; Code 1923, c. 35, §5.)

§6. Execution; to Whom Directed.—An execution in favor of the State, from any court, may be directed to the sheriff of any county.(Code 1849, c. 42, §9; Code 1860, c. 42, §9; Code 1868, c. 35, §6; 1882, c. 18, §6; Code 1923, c. 35, §6.)

§7. Order of Levy.—Every writ of fieri facias issued according to the fifth section of this article shall be levied first on the goods and chattels. If the officer having such writ can find no goods and chattels liable thereto, or not a sufficiency thereof, then he shall levy it on the real estate.(Code 1849, c. 42, §10; Code 1860, c. 42, §10; Code 1868, c. 35, §7; 1882, c. 18, §7; Code 1923, c. 35, §7.)

§8. Sale of Real Estate Under Execution; Notice.—When a levy is so made upon real estate, the officer making it shall publish notice thereof and of the time and place of sale in a newspaper printed within such county, and if there be no such paper, then such notice shall be published in some newspaper of general circulation in the county, and in either case, once a week for three successive weeks, and also notice shall be posted at the front door of the courthouse of the county in which such real estate is, and at such other places as may seem to be expedient, for a like period, and the sale shall take place at the premises or at the front door of the courthouse, as the officer may deem most advisable.(Code 1849, c. 42, §11; Code 1860, c. 42, §11; Code 1868, c. 35, §8; 1882, c. 18, §8; Code 1923, c. 35, §8.)

§9. Sale of Part of Realty.—If the amount of the execution and all the costs and expenses be not sooner paid, such officer shall proceed on the day mentioned in the notice to sell at public auction the interest of the party against whom the execution issued, in the real estate, or so much thereof as the officer may deem sufficient; and if a part only be sold it shall be laid off in one parcel in such place and manner as the debtor or his agent may direct, or if he give no direction, as the officer may deem best.(Code 1849, c. 42, §12; Code 1860, c. 42, §12; Code 1868, c. 35, §9; 1882, c. 18, §9; Code 1923, c. 35, §9.)

§10. Terms of Sale of Realty.—The sale shall be upon six months’ credit; and, if the land be not purchased for the State, the officer shall take the note of the purchaser with sureties for the payment of the purchase money to the State. Every such note shall mention on what occasion the same was taken and shall be returned to the office of the court from which the execution issued, and the clerk shall indorse thereon the date of its return. The officer and his sureties shall be liable to the State if insufficient security be taken on such bond.(Code 1849, c. 42, §13; Code 1860, c. 42, §13; Code 1868, c. 35, §10; 1882, c. 18, §10; Code 1923, c. 35, §10.)

§11. Conveyance of Realty.—So soon as the purchaser shall pay the purchase money, a deed shall be executed at his costs, reciting the execution, the sale and the price, and conveying the land to him. The grantor in such deed may either be the sheriff himself or the deputy or other person who acted in making the sale, but such deputy or other person shall not be such grantor unless the sheriff is legally disqualified from acting. Such deed shall pass to the purchaser all the interest which the party against whom the execution issued had in the land at the date of the judgment or decree.(Code 1849, c. 42, §14; Code 1860, c. 42, §14; Code 1868, c. 35, §11; 1882, c. 18, §11; Code 1923, c. 35, §11.)

§12. Who May Execute Conveyance in Certain Cases.—When the officer and his deputy who acted in making the sale shall both have died or removed out of the State before making such deed, or fail or refuse to act, or if the term of the officer within whose term such sale was made shall have expired, the deed may be executed by any successor of such officer, or by a commissioner appointed by the circuit court of the county for that purpose, which deed shall have the same force and effect as if made by the officer who made the sale.(Code 1849, c. 42, §15; Code 1860, c. 42, §15; Code 1868, c. 35, §12; 1882, c. 18, §12; Code 1923, c. 35, §12.)

§13. Resale on Default of Purchaser; Judgment on Note.—When any note taken under section ten of this article shall become due and not be paid, the officer shall sell the real estate for which such note was given, upon such notice as is provided in section eight of this article, and according to the provisions of section nine there of, for cash, and shall credit the same upon such note. If the proceeds of such sale for cash be not sufficient to pay such note so due as afore said, the clerk of such court shall enter in the law order book a judgment as near as may be in the form prescribed in section twenty-three, article three, chapter thirty-seven of this Code, against such of the obligors therein as may then be alive. Execution may issue against them on such judgment, and such execution may be proceeded under in like manner as an execution issued on any other judgment or decree, in favor of the State, save only that the clerk shall indorse that no security is to be taken, and the officer shall govern himself accordingly and sell for cash any real estate or personal property which he may levy on under the same.(Code 1849, c. 42, §16; Code 1860, c. 42, §16; Code 1868, c. 35, §13; 1882, c. 18, §13; Code 1923, c. 35, §13.)

§14. Judgment Against Personal Representatives.—Against the personal representatives of such of the obligors as may have died before judgment was entered under the preceding section, judgment may be obtained by action or motion.(Code 1849, c. 42, §17; Code 1860, c. 42, §17; Code 1868, c. 35, §14; 1882, c. 18, §14; Code 1923, c. 35, §14.)

§15. Property Unsold for Want of Bidders.—When return is made on any execution issued under the provisions of this article, that personal property or real estate remains unsold for want of bidders, or to that effect, the provisions of section eighteen, article four, chapter thirty-eight of this Code shall be applicable.(Code 1849, c. 42, §§18, 19, 20, 21; Code 1860, c. 42, §§18, 19, 20, 21; Code 1868, c. 35, §§15, 16, 17, 18; 1882, c. 18, §§15, 16, 17, 18; Code 1923, c. 35, §§15, 16, 17, 18.)

§16. Purchase of Lands for State.—When land levied on under execution on behalf of the State will not sell for the amount thereof the auditor, or such agent as is mentioned in section nineteen of this article, may purchase such land for the State.(Code 1849, c. 42, §26 Code 1860, c. 42, §26; Code 1868, c. 35, §23 1882, c. 18, §23; Code 1923, c. 35, §23.)

§17. Return of Execution Where Proper Encumbered.—In any case in which an office having an execution issued under the provisions of this article shall decline levying it because of any previous conveyance, execution or encumbrance, a return shall be made setting forth the nature of such conveyance, execution or encumbrance, in whose favor and for what amount and the office in which the conveyance or encumbrance is recorded, or from which the execution issued.(Code 1849, c. 42, §22; Code 1860, c. 42, §22; Code 1868, c. 35, §19; 1882, c. 18, §19 Code 1923, c. 35, §19.)

§18. Settlement or Dismissal of Claims.—The auditor or other officer or official body, having authority to collect the same, may, with the advice of the attorney general, adjust and settle, upon just and equitable principles, without regard to strict legal rules, any account or claim, in favor of the State, which may at the time have been standing upon the books of his office more than five years; and, with the like advice, may dismiss any proceedings instituted by him.(Code 1849, c. 42, §24; Code 1860, c. 42, §24; Code 1868, c. 35, §21; 1882, c. 18, §21; Code 1923, c. 35, §21.)

§19. Appointment of Agents to Collect Debts.—The auditor, with the approval of the governor, may appoint agents to superintend the collection of debts to, or claims of, the State, and may authorize them to secure payments thereof by installments or otherwise, and give further credit in consideration of additional security or indemnity satisfactory to him.(Code 1849, c. 42, §25; Code 1860, c. 42, §25; Code 1868, c. 35, §22; 1882, c. 18, §22; Code 1923, c. 35, §22.)

§20. Lands of State; List by Clerk.—The clerks of the county courts shall transmit to the auditor a list of all lands in their respective counties purchased by the State, under the provisions of section sixteen of this article, and set forth in such list all the information which they can obtain in relation to the lands mentioned therein. For each tract of land or lot so mentioned by any clerk of the county court, he shall receive one dollar from the treasury.(Code 1849, c. 42, §27; Code 1860, c. 42, §27; Code 1868, c. 35, §24; 1882, c. 18, §24; Code 1923, c. 35, §24.)

§21. Register of Lands by Auditor.—The auditor shall, in a book kept for the purpose, register all such lands as are required to be embraced in the lists mentioned in the preceding section, describing when, how, and of whom, they were obtained, their situation, quantity and the title thereto, together with the price paid therefor by the State.(Code 1849, c. 42, §28; Code 1860, c. 42, §28; Code 1868, c. 35, §25; 1882, c. 18, §25; Code 1923, c. 35, §25.)

§22. Sale of Lands.—The auditor may sell, or appoint an agent to sell, any of such lands on such terms as the auditor may think best, taking the bond of such agent, with good security, if any money is to come into his hands.(Code 1849, c. 42, §29; Code 1860, c. 42, §29; Code 1868, c. 35, §26; 1882, c. 18, §26; Code 1923, c. 35, §26.)

§23. Record of Such Sale.—In the book kept under the provisions of section twenty-one of this article, the auditor shall enter the time when any of the lands are disposed of, the price and terms of sale, the names of the agents and purchasers, and the amount paid into the treasury on account of the sale.(Code 1849, c. 42, §30; Code 1860, c. 42, §30; Code 1868, c. 35, §27; 1882, c. 18, §27; Code 1923, c. 35, §27.)

§24. Compensation of Agents for Collection of Debts.—For the service rendered by any agent under the provisions of section nineteen or any subsequent section of this article, the auditor shall recommend such compensation as may seem to him reasonable, not exceeding in any case ten per cent on the money actually paid into the treasury, and the governor shall authorize the payment of what may be so recommended, or so much thereof as in his judgment, may be proper.(Code 1849, c. 42, §31; Code 1860, c. 42, §31; Code 1868, c. 35, §28; 1882, c. 18, §28; Code 1923, c. 35, §28.)

§25. Execution of Deed.—Any agent selling land under the provisions of section twenty-two of this article shall, when directed, execute a deed, with the written direction of the auditor thereto annexed conveying to the purchaser all the interest which the State may have in such land; and, where such sale is made by the auditor in person, such deed shall be made by him.(Code 1849, c. 42, §32; Code 1860, c. 42, §32; Code 1868, c. 35, §29; 1882, c. 18, §29; Code 1923, c. 35, §29.)

§26. Reports to Legislature by Auditor.—The auditor shall biennially report to the legislature his proceedings under this article, setting forth particularly all the agents appointed by him, and their compensation, all debts collected, and property purchased by them, and all arrangements made with public debtors.(Code 1849, c. 42, §33; Code 1860, c. 42, §33; Code 1868, c. 35, §30; 1882, c. 18, §30; Code 1923, c. 35, §30.)

§27. Sale of Debts Due State.—The auditor may, with the advice and consent of the attorney general, whenever any claim or account of any kind, against a sheriff or other officer has been due for more than seven years, and the same is for any reason difficult or expensive to collect, certify a transcript of such claim or accounts to the sheriff of the county in which the officer, from whom the same is due, resided at the time his indebtedness to the State was incurred, and may authorize such sheriff to sell the same as hereinafter directed: Provided, That any claim or account, upon which judgment has been obtained and execution has been returned unsatisfied, may be sold after the expiration of five years from the time such claim or account was due, either in whole or in part as shown by the auditor’s book.(1879, c. 43, §1; 1882, c. 18, §31; Code 1923, c. 35, §31.)

§28. Notice of Sale of Claims.—The sheriff, after having received a transcript of the account which is to be sold, shall give notice by publication in a newspaper published in his county, if there be one, or, if there be no newspaper published in the county, then in a newspaper of general circulation therein, once a week for three successive weeks prior to the day of sale, and by posting at the front door of the courthouse of the county, for at least three weeks prior to the day of sale, that, on the first day of the term of the circuit court next thereafter, he will proceed to sell to the highest bidder the claims or accounts mentioned in such notice. Such notice shall show the name of the sheriff or other officer and his sureties, in case there is evidence of his having executed a bond, the year or years for which he was indebted to the State, upon what account such indebtedness exists, and the amount shown to be due thereon by the auditor’s books, exclusive of interest, as well as the amount appearing to be due, with interest calculated to the day of sale.(1879, c. 43, §2; 1882, c. 18, §32; Code 1923, c. 35, §32.)

§29. Mode and Terms of Sale of Claims.—The sheriff to whom such claim or account is certified under the provisions of this article shall on the first day of the term of the circuit court of his county succeeding the publication of such notice, make sale of such claim or account to the highest bidder, and, in case the amount bid therefor be less than one hundred dollars, he shall require the payment thereof in cash; and if the amount bid therefor be more than one hundred dollars, he shall require one-third thereof to be paid in cash, and shall receive the notes of the purchaser for the residue in two equal installments, payable respectively in six and twelve months, with legal interest thereon until paid. Such notes shall have the names of at least two persons signed thereto as sureties, whom the prosecuting attorney of the county, by indorsement on the back of such notes, shall certify are in his opinion responsible and solvent.(1879, c. 43, §3; 1882, c. 18, §33; Code 1923, c. 35, §33.)

§30. Return of Sale of Claims; Exceptions; Resale.—Within ten days after making such sale, the sheriff shall return and file in the clerk’s office of the circuit court of his county a report showing the name of the officer against whom the claim is, the date of sale, the date and character of the claim sold, the name of the purchaser, the amount for which sold, including cash and notes, and, in cases where notes are taken, the names of the securities thereon. Immediately after such report is filed in the clerk’s office as aforesaid, the clerk shall post a notice of that fact at the front door of the courthouse and shall state therein that exceptions may be filed to such report with the clerk of the circuit court. If, before the first day of the term of the circuit court beginning after the filing of such report, any person shall file exceptions thereto and such exceptions shall be accompanied by a bond with two or more good securities, conditioned that if a resale be ordered the person who files such exceptions will at the second sale give for the claim or account a sum ten per cent greater than the amount for which it first sold and will pay all the cost of advertising and making resale, then the court may in its discretion set such sale aside and order the sheriff to make another sale, upon such terms as the court may deem proper.(1879, c. 43, §4; 1882, c. 18, §34; Code 1923, c. 35, §34.)

§31. Confirmation of Sale of Claims; Certification to Auditor.—In cases where no exceptions are filed to the report, the court shall confirm the sale, and within twenty days after such confirmation the clerk of the court shall certify to the auditor a copy of such report and the order of confirmation.(1879, c. 43, §5; 1882 c. 18, §35; Code 1923, c. 35, §35.)

§32. Sending Purchase Money and Notes for Claims to Auditor.—Within thirty days after the confirmation of said report, the sheriff shall transmit to the auditor a certificate of deposit for the amount received by him in cash, and also any notes which may have been executed for the balance of purchase money, and in case of the failure of persons who execute such notes to pay the same when due, it shall be the duty of the auditor to proceed to enforce the collection thereof, in the same manner that other claims due the State are recovered.(1879, c. 43, §6; 1882, c. 18, §36; Code 1923, c. 35, §36.)

§33. Rights of Purchaser of Claims.—The purchaser of any accounts or claims so sold under the provisions of this article shall have the same right to recover that the State now has, and shall be substituted to all the right of the State concerning the same. But in case there be any error in any account or claim sold under this article, or it shall appear that the officer, against whom the claim is, is entitled to credits which do not appear upon the account or claim, the purchaser shall not be allowed any claim against the State by reason thereof.(1879, c. 43, §7; 1882, c. 18, §37; Code 1923, c. 35, §37.)

§34. Commissions to Sheriff.—The sheriff, for performing the duties required of him by this article, shall be allowed five per cent on the first one hundred dollars and two per cent on the residue, which commission shall be deducted from the purchase money and the balance credited on the debt due the State. The costs of publishing notice in a newspaper shall be paid out of the proceeds of such sale.(1879, c. 43, §8; 1882, c. 18, §38; Code 1923, c. 35, §38.)

§35. Transfer by Defaulting Officer or Surety.—In any proceeding had under the provisions of this article against sheriffs or collectors and their sureties, or any, or either of them, for money due the State, any transfer, assignment or alienation of property, real or personal, or any judgment or decree obtained against or suffered by such sheriff or collector and their sureties or either of them after service upon them, respectively, of summons or notice shall be deemed fraudulent or void as to any judgment that may be thereafter rendered in favor of the State in pursuance of such summons or notice. But this section shall not apply to a bona fide purchaser of any such property, without notice.(1872, c. 115; 1882, c. 18, §39; Code 1923, c. 35, §39.)

§36. Settlement With Sureties.—Whenever it shall appear to the satisfaction of the auditor that the sureties of a defaulting assessor or sheriff will be compelled to pay the indebtedness of such defaulting officer, he may, with the advice and consent of the attorney general, settle with such sureties by receiving the amount of the principal with interest thereon at the rate of six per cent per annum: Provided, That the sureties will pay the amount into the treasury before suit is brought.(1882, c. 18, §40; 1904, c. 10; Code 1923, c. 35, §40.)

§1. Audit of Claims; Petition.—Any person having a pecuniary claim against the State, which the auditor has disallowed in whole or in part, may apply by petition to the circuit court of the county in which the seat of government is, to have such claim audited and adjusted.(Code 1849, c. 46, §1; Code 1860, c. 46, §1; Code 1868, c. 37, §1; Code 1923, c. 37, §1.)

§2. Defense by State.—The person desiring to file such petition shall give the auditor at least ten days’ previous notice of his intention to do so, and of the day he will present the same, and it shall be the duty of the auditor to appear at such court and file his answer to such petition, stating his objections to such claim and his reasons for rejecting the same or any part thereof. The case shall be heard without unnecessary delay upon the petition and answer, and the evidence, if any, produced by either party, and it shall be the duty of the attorney general, or, in case of his absence, the prosecuting attorney of the county, to appear and defend the interest of the State in the case. And if the claim be disallowed by the court, a fee of ten dollars to the attorney so appearing shall be taxed by the court against the petitioner in the bill of costs.(Code 1849, c. 46, §2; Code 1860, c. 46, §2; Code 1868, c. 37, §2; 1882, c. 24, §2; Code 1923, c. 37, §2.)

§3. Ascertainment and Payment of Amount Due.—The court shall ascertain and enter of record what sum, if any, is due to the petitioner upon the claim mentioned in the petition and shall certify its decision to the auditor whether the claim, or any part thereof, be allowed or not; and, if such claim or any part of it be allowed, the auditor shall report the same to the legislature at its next session. But no such claim shall be paid until an appropriation shall be made therefor by the legislature.(Code 1849, c. 46, §§3, 5, 6; Code 1860, c. 46, §§3, 5, 6; 1882, c. 24, §3; Code 1923, c. 37, §3.)

§4. Suits Against State Officers or State Corporations.—All suits in which it may be necessary and proper to make any of the following public officers a party defendant as representing the State, to-wit: The governor, attorney general, treasurer or auditor; or in which it may be necessary or proper to make any of the following corporations parties defendants, to-wit: The board of public works or any other public corporation composed of officers of government, of the funds and property of which the State is sole owner; and all suits in which it shall be attempted to enjoin or otherwise suspend or affect any judgment or decree on behalf of the State, obtained in the circuit court of the county in which the seat of government is, or elsewhere, or any execution issued on such judgment or decree, shall be brought and prosecuted in the circuit court in which the seat of government is.(Code 1849, c. 46, §7; Code 1860, c. 46, §7; Code 1868, c. 37, §6; 1882, c. 24, §4; Code 1923, c. 37, §4.)

§5. Limitations.—No such petition as is mentioned in section one of this article shall be presented or filed, and no such suit as is mentioned in the next preceding section shall be brought after five years from the time the claim of the petitioner or plaintiff might have been presented or asserted. If, however, the person having such claim was an infant, married woman, insane or imprisoned at the time the same might have been presented, or asserted, such petition may be presented and such suit may be brought within two years after the removal of such disability.(Code 1849, c. 46, §9; Code 1860, c. 46, §9; 1882, c. 24, §5; Code 1923, c. 37, §5.)