Chapter 38. LIENS.

§1. Vendor’s Lien; Its Enforcement.—If any person convey real estate, or any interest, legal or equitable, therein, and the purchase money or any part thereof remain unpaid at the time of the conveyance, he shall not thereby have a lien for such unpaid purchase money unless such lien is expressly reserved on the face of the conveyance. A vendor’s lien may be enforced by a suit in equity.(Code 1849, c. 119, §1; Code 1860, c. 119, §1; Code 1868, c. 75, §1; 1872-3, c. 139, §1; 1879, c. 84, §1; 1882, c. 64, §1; 1917, c. 6, §1; Code 1923, c. 75, §1.)

§2. Form of Trust Deed.—A trust deed to secure debts or indemnify sureties may be in the following form or to the same effect: “This deed made the........ day of....................., in the year......, between...................... (the grantor) of the one part, and..................... (the trustee) of the other part, witnesseth: That the said.................. (the grantor) doth (or do) grant unto the said................................ (the trustee) the following property (here describe it). In trust to secure (here describe the debts to be secured or the sureties to be indemnified, and insert covenants, or any other provisions the parties may agree upon). Witness the following signature.”(Code 1849, c. 117, §5; Code 1860, c. 117, §5; Code 1868, c. 72, §5; Code 1923, c. 72, §5.)

§3. Sales Under Trust Deeds.—The trustee in any trust deed given as security shall, whenever required by any creditor secured or any surety indemnified by the deed, or the assignee or personal representative of any such creditor or surety, after the debt due to such creditor or for which such surety may be liable shall have become payable and default shall have been made in the payment thereof, or any part thereof, by the grantor or other person owing such debt, and if all other conditions precedent to sale by the trustee, as expressed in the trust deed, shall have happened, sell the property conveyed by the deed, or so much thereof as may be necessary, at public auction, having first given notice of such sale as prescribed in the following section.(Code 1849, c. 117, §6; Code 1860, c. 117, §6; Code 1868, c. 72, §6; 1870, c. 51; 1882, c. 140, §6; 1887, c. 54; 1891, c. 77; Code 1923, c. 72, §6.)

§4. Notice of Sale.—When any property is about to be sold under a trust deed, the trustee shall, unless it be otherwise provided in such trust deed, or in the opinion of the trustee the property to be sold be of less value than three hundred dollars, publish a notice of such sale in some newspaper published in the county where the property is located, if there be one which will publish the notice at the rates prescribed by law. Such notice, unless it be otherwise provided in the trust deed, shall be published at least once a week for four successive weeks preceding the day of sale, and a copy of such notice shall be posted at the front door of the courthouse for a like period; but if there be no newspaper published in such county, or if there be none that will publish such notice at the rates prescribed by law, or if, in the opinion of the trustee, the property be of less value than three hundred dollars, such a notice of sale shall be posted at least twenty days prior thereto at the front door of the courthouse of the county in which the property to be sold is, and at three other public places at least in the county, one of which shall be as near the premises to be sold (in case the sale be of real estate) as practicable; and in all cases, whether the notice be published or not, a copy of such notice shall be served on the grantor in such trust deed, or his agent or personal representative, if he or they be within the county, at least twenty days prior to the sale. Every notice of sale by a trustee under a trust deed shall show the following particulars: (a) The time and place of sale; (b) the names of the parties to the deed under which it will be made; (c) the date of the deed; (d) the office and book in which it is recorded; (e) the quantity and description of the land or other property, or both, conveyed thereby; and (f) the terms of sale.(Code 1849, c. 117, §6; Code 1860; c. 117, §6; Code 1868, c. 72, §§6, 7; 1870, c. 51; 1882, c. 140, §§6, 7; 1887, c. 54; 1891, c. 77; Code 1923, c. 72, §§6, 7.)

§5. Terms of Sale.—Such sale shall be made upon such terms as are mentioned in such deed; and if no terms are therein mentioned, then upon the following terms, to-wit: If the property to be sold is real estate, one-third of the purchase money cash in hand, one-third thereof, with interest, in one year, and the residue thereof, with interest, in two years from the day of sale, taking from the purchaser his notes, with good security, for the deferred payments, and either retaining the legal title as further security, or conveying the legal title and reserving in the deed of conveyance a lien for the deferred purchase money, or otherwise securing the same; if the property to be sold be personal estate, then for cash.(Code 1849, c. 117, §6; Code 1860, c. 117, §6; Code 1868, c. 72, §6; 1870, c. 51; 1882, c. 140, §6; 1887, c. 54; 1891, c. 77; Code 1923, c. 72, §6.)

§6. Form of Trustee’s Deed.—Every deed for real estate sold under a trust deed may be made in the following form, or to the same effect: This deed, made the..........day of............, between A.... B...., trustee, of the first part, and C.... D.... of the second part: Whereas the said trustee, by virtue of the authority vested in him by the trust deed hereinafter mentioned, (or by an order of the circuit court of the county of ...., made on the.... day of ...., (as the case may be) did sell the real estate hereinafter described and conveyed, at which sale the said C.... D.... became the purchaser for the sum of .....dollars. Now therefore this deed witnesseth: That the said A.... B...., trustee as aforesaid, doth grant unto the said C.... D.... a certain parcel of real estate situate in the county (or city, town or village, as the case may be) of ...., said real estate being the real estate conveyed by E.... F.... to the said A.... B.... trustee (or to G.... H...., trustee, as the case may be) by deed bearing date the..........day of ...., 19.., and recorded (if it be recorded) in trust deed book.... on page.... in the office of the clerk of the county court of the county of ...., and bounded and described therein as follows: (here insert the description and quantity as set forth in the trust deed, and any other or further description deemed necessary. A reservation of a vendor’s lien, a covenant of special warranty, or any other provision which is in accord with the terms of sale and the trustee’s duty may also be inserted.)

Witness the following signature.

A..........B............, Trustee.(Code 1868, c. 72, §8; 1882, c. 140, §8; Code 1923, c. 72, §8.)

§7. Application of Proceeds.—The trustee shall apply the proceeds of sale, first to the payment of expenses attending the execution of the trust, including a commission to the trustee of five per cent on the first three hundred dollars, and two per cent on the residue of the proceeds, and shall apply the balance of such proceeds pro rata (or in the order of priority, if any, prescribed by the trust deed) to the payment of the debts secured and the indemnity of the sureties indemnified by the deed, and shall pay the surplus, if any, to the grantor, his heirs, personal representatives or assigns, as their interests may appear.(Code 1849, c. 117, §6; Code 1860, c. 117, §6; Code 1868, c. 72, §6; 1870, c. 51; 1882, c. 140, §6; 1887, c. 54; 1891, c. 77; Code 1923, c. 72, §6.)

§8. Trustee After Sale to Return an Account of Sales.—When a sale of property is made under any trust deed otherwise than under a decree, there shall, within two months after the sale, be returned by the trustee, to the clerk of the county court of the county wherein such deed may have been first recorded, an inventory of the property sold and an account of the sale. Any trustee failing to comply with this section shall forfeit his commissions on such sale, which commissions may be recovered in an action by the grantors in such deed, or of any beneficiary when the proceeds of sale were insufficient to pay the debt secured.(Code 1849, c. 132, §4; Code 1860, c. 132, §4; 1872-3, c. 234, §4; 1882, c. 68, §3; Code 1923, c. 87, §3.)

§9. Recordation of Account of Trustee.—When any account required by the next preceding section is returned, the clerk of the county court shall record the same in a well-bound book to be kept for that purpose, to be called “Reports of Sales Under Trust Deeds,” and properly index the same, for which service such clerk shall receive the fee provided by law.(1872-3, c. 234, §5; 1882, c. 68, §4; Code 1923, c. 87, §4.)

§10. Who May Require Bond; New Trustee; Notice.—The grantor or his assignee, or any cestui que trust, may at any time after the execution of the trust deed, by notice in writing, require any trustee to give the bond mentioned in the following section of this article, and, upon his failure to do so for twenty days after such notice, the power of such trustee shall cease, and another trustee may be appointed by the circuit court of any county wherein such deed of trust is recorded, or by the judge thereof in vacation, to execute such trust, upon the application of any cestui que trust, or the grantor or any as signee of the grantor, if, upon the hearing of such application, the failure of the trustee to give such bond be made to appear to the satisfaction of such court or judge, by affidavits or otherwise. At least ten days’ notice in writing of such application shall be given to the trustee, grantor, or assignee of the grantor, and to all cestuis que trust in such deed if they be residents of the county, stating the court or judge before whom such application is to be made. If such trustee and grantor or assignee of the grantor, or either of them, are not residents of such county, the notice as to them, or the one not a resident, may be published for two successive weeks in some newspaper published in such county, or in some newspaper of general circulation, therein, if none be published in the county.(1887, c. 54; 1891, c. 77; Code 1923, c. 72, §6.)

§11. Bond of Trustee; Recordation.—If the grantor in the trust deed, or any person to whom such grantor shall have granted or assigned the property covered by such deed, or any cestui que trust of such trust deed, shall as provided in the preceding section, require the trustee to give bond, such trustee shall, before making any sale, or receiving any of the proceeds of such sale, give bond in a penalty at least equal to the full value of the property to be sold, with good security, before the clerk of the county court of the county where such property is, which bond and so security shall be approved by such clerk, conditioned that he will faithfully perform his duty as such trustee, and account for and pay over, as required by law, all money that may come into his hands in the execution of such trust. Every such bond shall be filed by such clerk in his office, and recorded by him in the book in which the bonds of administrators are recorded. Every notice of sale by a trustee under a trust deed shall a have appended to it the certificate of such clerk, that bond and security has been given by the trustee as required by law, if such bond be required as aforesaid, but the failure to give such bond shall not affect the title of any purchaser of such property at the trustee’s sale, for value, and without notice of the fact that such bond had been required.(1887, c. 54; 1891, c. 77; Code 1923, c. 72, §6.)

§12. Bond of Trustee Appointed by Court; Recordation.—Of a trustee appointed by the court under the provisions of section ten of this article bond shall be required in the penalty of at least the full value of the property which may come into his hands, which bond may be given before and approved by such court or judge, or be given before and approved by the clerk of the county court of such county, upon the order of such circuit court or judge, and shall be filed by such clerk in his office, and recorded as provided in section eight of this article, and shall be with like condition as the bond given by a trustee named in the trust deed.(1887, c. 54; 1891, c. 77; Code 1923, c. 72, §6.)

§13. Death or Disability of Trustee in Trust Deed.—In cases not specifically provided for in his article, the provisions of article fourteen, chapter forty-four of this Code shall be appliable to trustees mentioned in this article.

§14. Qualification of Trustee of Insolvent; New Trustee.—A person appointed by an insolvent debtor as trustee in any assignment, conveyance, transfer, or other act of such insolvent debtor, which is intended to operate as an assignment of all such debtor’s property for the benefit of all of his creditors, or of all such property except what is exempt from execution or other process, or which does so operate under the laws of this State, shall not have the power of such trustee until he qualifies as such by taking an oath and giving a bond in a penalty double the amount of the ascertained estate, with sufficient surety, before the clerk of the county court of the county in which such assignment, conveyance, transfer or other instrument is or should be recorded, or such act is done, in the manner by which a personal representative of the estate of a decedent is qualified. The provisions of section ten of this article, concerning the appointment of a new trustee in certain cases, shall apply to the trusts mentioned in this section, except that notice need only be given to those creditors known to the person so applying for the appointment of a new trustee.(1905, c. 55; Code 1923, c. 72, §6a.)

§15. Oath and Bond of Trustee of Insolvent.—The oath of such trustee of an insolvent debtor shall be that he will faithfully perform the duties of the office of trustee to the best of his skill and judgment, and will account for and pay over all money that comes to his hands as such trustee. The bond shall be approved by the clerk of the county court, and conditioned that such trustee shall faithfully perform the duties of trustee to the best of his skill and judgment and account for and pay over all money that may come to his hands as such trustee.(1905, c. 55; Code 1923, c. 72, §6a.)

§16. Appraisers.—Upon the qualification of such trustee of an insolvent debtor, there shall be appraisers appointed to appraise the estate of the insolvent debtor in the same manner and by the same authority that appraisers are appointed for the estate of a decedent, and such appraisers shall be governed by the same laws and perform the same duties that appraisers of the estate of a decedent are governed by and are required to perform.(1905, c. 55; Code 1923, c. 72, §6a.)

§17. Powers of Clerk in Vacation.—In the vacation of the county court, the clerk thereof shall perform the duties in the appointment of the appraisers, mentioned in the preceding section, that such clerk is now required by law to perform in the appointment of appraisers of decedents’ estates.(1905, c. 55; Code 1923, c. 72, §6a.)

§18. Settlement Before Commissioner of Accounts.—Every such trustee of an insolvent debtor shall appear before a commissioner of accounts of the county court before whose clerk he qualified as such trustee, and lay before such commissioner a report of his receipts and disbursements, and his vouchers for the same, in all respects and with like effect as is provided for fiduciaries generally by article four, chapter forty-four of this Code.(1905, c. 55; Code 1923, c. 72, §6a.)

§1. Lien of Contractor.—Every person, firm or corporation, which shall erect, build, construct, alter, remove or repair any building or other structure, or other impovement appurtenant to any such building or other structure, under and by virtue of a contract with the owner for such erection, building, construction, alteration, removal or repair, either for an agreed lump sum or upon any other basis of settlement and payment, shall have a lien upon such building or other structure or improvement appurtenant thereto, and upon the interest of the owner thereof in the lot of land whereon the same stands, or to which it may have been removed, to secure the payment of such contract price or other compensation therefor.(Code 1849, c. 119, §2; Code 1860, c. 119, §2; 1866, c. 31, §1; 1868, c. 133, §1; Code 1868, c. 75, §2; 1872-3, c. 139, §2; c 1879, c. 84, §2; 1882, c. 64, §2; 1891, c. 111, §2; 1917, c. 6, §2; Code 1923, c. 75, §2.)

§2. Lien of Subcontractor.—Every person, firm or corporation who, under and by virtue of of a contract with such general contractor as is mentioned in section one of this article or with a subcontractor for a part of such work, either for an agreed contract price or by day or by piece, or other basis of payment, shall furnish any part of the materials, machinery or other necessary supplies or equipment, or shall perform any labor or do any work necessary to the completion of any general contract, such as is mentioned in section one of this article, shall have such a lien for his compensation, as is provided in section one of this article.(Code 1849, c. 119, §2; Code 1860, c. 119, §2; 1866, c. 31, §1; 1868, c. 133, §1; Code 1868, c. 75, §2; 1872-3, c. 139, §2; 1879, c. 84, §2; 1882, c. 64, §2; 1891, c. 111, §2; 1917, c. 6, §2; Code 1923, c. 75, §2.)

§3. Lien of Materialman Furnishing Supplies to Owner.—Every person, firm or corporation which shall furnish to any owner, for use in the erection, construction, alteration, repair or removal of any building or other structure or improvement appurtenant thereto, any materials, machinery or other equipment or supplies necessary to the completion of such building or other structure or improvement, shall have such a lien for his compensation as is mentioned in section one of this article.(Code 1849, c. 119, §2; Code 1860, c. 119, §2; 1866, c. 31, §1; 1868, c, 133, §1; Code 1868, c. 75, §2; 1872-3, c. 139, §2; 1879, c. 84, §2; 1882, c. 64, §2; 1891, c. 111, §2; 1917, c. 6, §2; Code 1923, c. 75, §2.)

§4. Lien of Materialman Furnishing Supplies to Contractor.—Every person, firm or corporation, which shall furnish to any general contractor or to any subcontractor mentioned in sections one and two of this article, any materials, machinery or other equipment or supplies necessary to the completion of any building or other structure mentioned in this article, or improvement appurtenant thereto, for use in the erection, construction, repair or removal thereof, by virtue of a contract between such general contractor or subcontractor and the materialman or furnisher of machinery, or other supplies or equipment necessary to the completion of such general contract, shall have such a lien for his compensation as is mentioned in section one of this article.(Code 1849, c. 119, §2; Code 1860, c. 119, §2; 1866, c. 31, §1; 1868, c. 133, §1; Code 1868, c. 75, §2; 1872-3, c. 139, §2; 1879, c. 84, §2; 1882, c. 64, §2; 1891, c. 111, §3; 1917, c. 6, §2; Code 1923, c. 75, §2.)

§5. Lien of Mechanic or Laborer Working for Owner.—Every workman, artisan, mechanic, laborer or other person, who shall perform any work or labor in the erection, construction, repair or removal of any building or other structure or improvement appurtenant thereto, by virtue of a contract for such work and labor directly with the owner thereof, shall have such a lien for his compensation as is mentioned in section one of this article.(Code 1849, c. 119, §2; Code 1860, c. 119, §2; 1866, c. 31, §1; 1868, c. 133, §1; Code 1868, c. 75, §2; 1872-3, c. 139, §2; 1879, c. 84, §2; 1882, c. 64, §2; 1891, c. 111, §2; 1917, c. 6, §2; Code 1923, c. 75, §2.)

§6. Lien of Mechanic or Laborer Working for Contractor.—Every workman, artisan, mechanic, laborer or other person, who shall perform any work or labor under the employment of any general contractor or of any subcontractor in the erection, construction, repair or removal of any building or other structure, or improvement thereto necessary to the completion of such general contract, shall have such a lien for his compensation as is mentioned in section one of this article.(Code 1849, c. 119, §2; Code 1860, c. 119, §2; 1866, c. 31, §1; 1868, c. 133, §1; Code 1868, c. 75, §2; 1872-3, c. 139, §2; 1879, c. 84, §2; 1882, c. 64, §2; 1891, c. 111, §3; 1917, c. 6, §2; Code 1923, C. 75, §2.)

§7. Necessity for Perfecting Lien.—But the lien created and authorized by section one of this article shall be discharged from and after ninety days from the completion of such contract, and the lien created and authorized by section two of this article shall be discharged from and after sixty days from the completion of such subcontract, and the lien created and authorized by section three of this article shall be discharged from and after ninety days from the furnishing of the last of such materials, machinery or other supplies and equipment, and the lien created and authorized by section four of this article shall be discharged from and after sixty days from the date of the furnishing of the last of such materials, machinery or other equipment or supplies, and the lien created and authorized by section five of this article shall be discharged from and after ninety days from the date of the performing of the last of such work and labor, and the lien created and authorized by section six of this article shall be discharged from and after sixty days from the date of the performing of the last of such work and labor, unless, within such respective periods, the claimant of any such lien shall have perfected and preserved the same, as hereinafter provided in this article.(Code 1868, c. 75, §§3, 5; 1872-3, c. 139, §§3, 5; 1879, c. 84, §3; 1882, c. 64, §§3, 5; 1891, c. 111, §§3, 4; 1917, c. 6, §3; Code 1923, c. 75, §3.)

§8. Notice and Recordation of Contractor’ Lien.—For the purpose of perfecting and preserving his lien, any such general contractor as is mentioned in section one of this article shall, within ninety days after the completion of his work provided for in such contract, cause to be recorded, in the office of the clerk of the county court of the county wherein such property is situate, a notice of such lien, which notice shall be sufficient if in form and effect as follows:

(Code 1868, c. 75, §§3, 5; 1872-3, c. 139, §3; 1879, c. 84, §3; 1882, c. 64, §§3, 5; 1891, c. 111, §§3, 4; 1917, c. 6, §3; Code 1923, c. 75, §3.)

§9. Notice and Recordation of Subcontractor’s Lien.—For the purpose of perfecting and preserving his lien, every such subcontractor mentioned in section two of this article shall, within sixty days after the completion of his subcontract, give to the owner or his authorized agent, by any of the methods provided by law for the service of a legal notice or summons, a notice of lien, which notice shall be sufficient if in form and effect as follows:

But such lien shall be discharged and avoided, unless within ninety days after the completion of his subcontract as aforesaid such subcontractor shall cause to be recorded in the office of the clerk of the county court of the county wherein such property is situate a notice of such lien, which notice shall be sufficient if in form and effect as that provided in section eight of this article.(Code 1868, c. 75, §§3, 5; 1872-3, c. 139, §§3, 5; 1879, c. 84, §3; 1882, c. 64, §§3, 5; 1891, c. 111, §§3, 4; 1917, c. 6, §3; Code 1923, c. 75, §3.)

§10. Notice and Recordation of Lien for Supplies Furnished to Owner.—For the purpose of perfecting and preserving his lien, every materialman or furnisher of machinery or other necessary equipment, under a contract with the owner, as mentioned in section three of this article, shall cause to be recorded in the office of the clerk of the county court of the county wherein such property is situate, within ninety days from the date when he shall have ceased to furnish material or machinery or other necessary equipment, a notice of such lien, which notice shall be sufficient if in form and effect as that provided in section eight of this article.(Code 1868, c. 75, §§3, 5; 1872-3, c. 139, §3; 1879, c. 84, §3; 1882, c. 64, §§3, 5; 1891, c. 111, §§3, 4; 1917, c. 6, §3; Code 1923, c. 75, §3.)

§11. Notice and Recordation of Lien for Supplies Furnished to Contractor.—For the purpose of perfecting and preserving his lien, every materialman or furnisher of machinery or other necessary equipment, who shall have furnished material, machinery or equipment under a contract with any contractor or with any subcontractor, as set forth in section four of this article, within sixty days after he shall have ceased to furnish such material or machinery or other equipment, shall give to the owner, or his authorized agent, by any of the methods provided by law for the service of a legal notice or summons, a notice of such lien, which notice shall be sufficient if in form and effect as follows:

But such lien shall be discharged and avoided, unless, within ninety days after such materialman or other furnisher of machinery or other necessary equipment shall have ceased to furnish such materials or machinery or other equipment, he shall cause to be recorded in the office of the clerk of the county court of the county wherein such property is situate a notice of such lien, which notice shall be sufficient if in form and effect as that provided in section eight of this article, and which recorded notice need not include such itemized account.(Code 1868, c. 75, §§3, 5; 1872-3, c. 139, §§3, 5; 1879, c. 84, §3; 1882, c. 64, §§3, 5; 1891, c. 111, §§3, 4; 1917, c. 6, §3; Code 1923, c. 75, §3.)

§12. Notice and Recordation of Lien of Mechanic or Laborer Working for Owner.—For the purpose of perfecting and preserving his lien every such workman, artisan, mechanic, laborer or other person as is mentioned in section five of this article who shall have done any work or performed any labor upon any such building or improvement, under a contract with the owner thereof, shall cause to be recorded in the office of the clerk of the county court of the county wherein such property is situate, within ninety days after he shall have ceased to perform any such work or labor, a notice of his lien, which notice shall be sufficient if in form and effect as that provided in section eight of this article.(Code 1868, c. 75, §§3, 5; 1872-3, c. 139, §3; 1879, c. 84, §3; 1882, c. 64, §§3, 5; 1891, c. 111, §§3, 4; 1917, c. 6, §3; Code 1923, c. 75, §3.)

§13. Notice and Recordation of Lien of Mechanic or Laborer Working for Contractor.—For the purpose of perfecting and preserving his lien, every workman, artisan, mechanic, laborer or other person who shall have performed any work or labor upon such building or improvement thereto, under a contract with any general contractor or with any subcontractor, as set forth in section six of this article, shall cause to be given to the owner, or his authorized agent, by any of the methods provided by law for the service of a legal notice or summons, within sixty days after he shall have ceased to perform any such work or labor, a notice of such lien, which notice shall be sufficient, if in form and effect as follows:

But such lien shall be discharged, unless such workman, artisan, mechanic, laborer or other person shall cause to be recorded in the office of the clerk of the county court wherein such property is situate, within ninety days after he shall have ceased to do work or perform labor upon such building or improvement thereto, a notice of such lien, which notice shall be sufficient if in form and effect as that provided in section eight of this article and which recorded notice need not include such itemized account.(Code 1868, c. 75, §§3, 5; 1872-3, c. 139, §§3, 5; 1879, c. 84, §3; 1882, c. 64, §§3, 5; 1891, c. 111, §§3, 4; 1917, c. 6, §3; Code 1923, c. 75, §3.)

§14. Discharge of Lien.—The failure of any person claiming a lien under this article to give such notice as is required by sections nine, eleven and thirteen of this article, or to record such notice as is required by sections eight, nine, ten, eleven, twelve and thirteen of this article, in the manner and within the time specified in such sections, or the failure of any such claimant of any such lien to comply substantially with all of the requirements of this article for the perfecting and preservation of such lien, within the time provided therefor in this article, shall, except as provided in section twenty of this article, operate as a complete discharge of such owner and of such property from all liens for claims and charges of any such contractor, subcontractor, materialman or laborer, for any work claimed to have been performed and for any materials, machinery or other necessary equipment claimed to have been furnished in connection with such work.(Code 1868, c. 75, §§3, 5; 1872-3, c. 139, §§3, 5; 1879, c. 84, §3; 1882, c. 64, §§3, 5; 1891, c. 111, §4; 1917, c. 6, §3; Code 1923, c. 75, §3.)

§15. Publication of Notice to Nonresident Owner or Owner Not Found.—In the event that any owner, upon whose real estate or improvement thereof it is desired to take a lien under this article, should be a nonresident of this State, or in the event that any officer of this State authorized by law to execute legal process should make return “not found” upon any notice of a mechanic’s lien which may be presented to him for service, then it shall be sufficient service of any such notice of mechanic’s lien upon such a nonresident owner, or upon such owner as to whom any such return of “not found” shall be made by any such officer, to publish a copy of such notice for two successive weeks in some newspaper of general circulation in the county wherein the real estate lies, and to post a copy of such notice in a conspicuous place upon the property sought to be charged thereby, which publishing and posting shall be sufficient, if commenced within the period provided by this article for the filing of such notice. The costs of such publication may be added to the account for which the lien is claimed, and, if included in the amount mentioned in the recorded notice, the lien shall cover such costs.(1917, c. 6, §3; Code 1923, c. 75, §3.)

§16. Scope of Contract.—For the purposes of this article, all materials furnished and all work done by any one person, firm or corporation, upon any one building or the improvements appurtenant thereto, shall be deemed and considered one contract, whether or not all of such material was bought at one time, or under one general agreement or otherwise, and whether or a not all of such work and labor was contracted for at one time or otherwise.(1917, c. 6, §4; Code 1923, c. 75, §4.)

§17. Priority of Liens.—All of the liens authorized and created by this article shall, except as provided in section thirty-one of this article, have priority over any and all other liens created by trust deed or otherwise, on such building or other structure and improvements appurtenant thereto and on the interest of the owner in the lot of ground whereon the same stands or to which the same may have been removed, subsequently to the time when such labor shall have begun to be performed, or such material or machinery or other necessary equipment shall have a begun to be furnished.(Code 1868, c. 75, §2; 1872-3, c. 139, §2; 1879, c. 84, §2; 1882, c. 64, §2; 1891, c. 111, §3; 1903, c. 42; 1917, c. 6, §5; Code, 1923, c. 75, §5.)

§18. Priority as Among Mechanics’ Lienors.—Of the persons acquiring liens by virtue of this article, laborers, artisans, mechanics, workmen and furnishers of material, machinery and other necessary equipment, shall have first liens, and the lien of all such persons, when perfected and preserved as required by this article, shall take precedence over any lien taken or to be taken by the contractor or subcontractor indebted to them for labor, material, machinery or other equipment, and the lien of a subcontractor shall take precedence over any lien taken or to be taken by a contractor indebted to him upon his subcontract, and every assignment or transfer by any such head contractor of his contract with the owner or by any such subcontractor of his contract with the contractor, or any proceeding attachment or otherwise against such head contractor or subcontractor, with the purpose of encumbering or subjecting his interest in such contract, shall be subject and subordinate to the liens of all such subcontractors, laborers, workmen, artisans, materialmen and furnishers of machinery and other necessary equipment who shall perfect their liens according to the provisions of this article. But all of such perfected liens of such laborers and workmen and of such materialmen and furnishers of machinery and of such contractors and subcontractors, respectively, shall be of equal dignity without priority among themselves, except as otherwise provided in this article.(Code 1868, c. 75, §2; 1872-3, c. 139, §2; 1879, c. 84, §2; 1882, c. 64, §2; 1891, c. 111, §3; 1903, c. 42; 1917, c. 6, §5; Code 1923, c. 75, §5.)

§19. Demand of Account by Owner; Discharge of Lien.—The owner may, at any time, by notice in writing, require such subcontractor, laborer, mechanic, workman or other person doing, or causing to be done, work or labor upon such building or other structure or improvement, appurtenant thereto, or any such materialman or other person furnishing materials, machinery or other necessary equipment for such work, to file with such owner an itemized account of the work done or caused to be done by such laborer or other person, or of the materials or machinery or other equipment furnished by such materialman or other person for such work, which account shall show the dates upon which such work was done, or such materials were furnished, the price charged therefor, and the nature of such work or materials, and the neglect or failure of any such laborer, mechanic or other person furnishing materials, machinery or other necessary equipment for the doing of the same, so to file such itemized statement with such owner, within ten days after the receipt by him of such written notice so to do, shall release such owner from all responsibility and his property from all lien or charge for all labor done and for all materials furnished by the person so failing to file such required itemized statement, prior to the giving of such notice.(1891, c. 111, §3; 1903, c. 42; 1917, c. 6, §6; Code 1923, c. 75, §6.)

§20. Preliminary Notice to Owner; Effect.—Any laborer or other person employed to do any work or furnish any materials or machinery for the erection, construction, alteration, repair or removal of any building or other structure, or any improvement appurtenant thereto, by an other who may have contracted with the owner therefor may, before doing any work or furnishing any material or machinery, give the owner of such building or other structure or improvement thereto notice in writing that if he is not paid therefor by the person employing him, he will look to the owner for payment; and it shall not be necessary for the person who has given such notice in writing to file the account and notice with the owner within sixty days of the date of the doing of the last work or of the furnishing of the last of such materials or machinery, unless he is required by the owner in writing within such sixty days to do so, and his neglect or failure to file such notice and account within sixty days, unless so required to do so, shall in no way affect or impair his lien if it be otherwise perfected and preserved, as provided in this article.(1891, c. 111, §3; 1903, c. 42; 1917, c. 6, §6; Code 1923, c. 75, §6.)

§21. Effect of Payment by Owner to Contractor.—No payment by the owner to any contractor or subcontractor of any part or all of the contract price for the erection and construction of any such building, structure or improvement appurtenant thereto or for any part or section of such work shall affect, impair or limit the lien of the subcontractor, laborer, or materialman or furnisher of machinery or other necessary material or equipment, as provided for in this article, except as otherwise provided in this article.(1891, c. 111, §5; 1917, c. 6, §7; Code 1923, c. 75, §7.)

§22. Limitation of Owner’s Liability by Recordation of Contract and Bond of Contractor.—Any owner may limit his liability upon a contract such as is mentioned in section one of this article, to the sum agreed therein to be paid therefor, by recording his contract with such general contractor, in the office of the clerk of the county court of the county wherein such building or other structure is situate, prior to the beginning of the building, erection and construction thereof, and by requiring to be given by his general contractor, and by recording with such general contract, a valid and solvent bond, in a penalty equal to the contract price, with solvent surety, conditioned that in the event any laborer, materialman or other person, having perfected his lien as allowed by this article, be deprived by the recordation of the owner’s contract from receiving from such owner the amount of his lien, then such bond and the surety thereon shall be responsible to such lienor for the amount of such lien account, or for any balance thereof not collected by such lienor from such owner and from such property. Any such owner who shall cause his general contract to be recorded in such clerk’s office and who shall cause to be executed and recorded the bond therewith as hereinbefore provided shall be exempt from the payment of more than such contract price; and his property shall likewise be exempt therefrom, and all such liens created by this article as are not fully satisfied and discharged by such owner, by reason of such recordation, shall be paid by such contractor and his surety on such bond. If liens in excess of the contract price are perfected as provided in this article, the owner shall be liable to each lien claimant pro rata, in the proportion which the contract price bears to the total amount of the liens so perfected.(1891, c. 111 §5; 1917, c. 6, §§8, 9; Code 1923, c. 75, §§8, 9.)

§23. Effect of Failure of Owner to Record Contract and Solvent Bond.—In the event any such owner should fail to record such contract and bond, or in the event the penalty of such bond should not be equal to the contract price, or in the event such bond should not be solvent at the time when given, then such contractor shall be deemed to be the agent of such owner and the building or other structure and the improvements appurtenant thereto, together with the interest of the owner thereof in and to the lot of land whereon the same stands or to which it is removed, shall be held liable and subject to such perfected liens, for the full and true value of all work and labor done and of all materials, machinery and equipment furnished therefor, although the same may exceed in the aggregate the price stipulated in the contract between the owner and the contractor.(1917, c. 6, §14; Code 1923, c. 75, §14.)

§24. Form of Bond.—The bond referred to in section twenty-two of this article shall be sufficient if in form and effect as follows:

No change or modification of any such contract between such owner and such general contractor shall operate to discharge or release the obligation of the surety or sureties upon any such bond.(1917, c. 6, §10; Code 1923, c. 75, §10.)

§25. Amount of Rural Land Subject to Lien.—Whenever a lien, perfected and preserved under this article is sought to be enforced against any property outside of any city, town or village, it shall be the duty of the court before which any suit for the enforcement of such lien is pending, to determine in its discretion how much land surrounding any such building shall be subject to such lien. In any event, not more of such land shall be so subject to such lien than shall be reasonably necessary to the full enjoyment of such building or other improvement.(1917, c. 6, §11; Code 1923, c. 75, §11.)

§26. Enforcement of Contractor’s Bond.—Whenever it shall be necessary for suit to be brought as hereinafter provided, for the enforcement of any of the liens contemplated by this article, such contractor and the sureties upon such bond mentioned in sections twenty-two, twenty-three and twenty-four of this article, shall be made parties thereto and all matters arising upon such bond and the liabilities thereunder shall be litigated and determined in such suit to enforce the lien and it shall not be necessary for judgment upon such bond to be taken at law, but all such proceedings as are necessary to enforce liability upon such bond shall be had in such court of chancery, according to the usual and ordinary course of proceeding therein.(1917, c. 6, §13; Code 1923, c. 75, §13.)

§27. Mechanic’s Lien Record.—It shall be the duty of the clerk of the county court of the county to enter every notice of lien mentioned in this article upon the filing in his office of such notice in a book by him to be kept for that purpose, to be called “Mechanic’s Lien Record,” which book shall be well and properly indexed, so as to show the names of the parties, the amount and character of the claim, when filed, and the description of the property to be charged by such lien. The contract and bond mentioned in section twenty-two of this article shall also, when filed in the office of such clerk, be entered in the mechanic’s lien record and indexed.(1872-3, c. 139, §4; 1879, c. 84, §4; 1882, c. 64, §4; 1891, c. 111, §5; 1917, c. 6, §15; Code 1923, c. 75, §15.)

§28. Proof of Use of Material.—Proof of the sale to any owner, contractor or subcontractor of any materials, machinery or other equipment for use in the performance of any contract mentioned in this article, and of the delivery of such materials, machinery or other equipment to such contractor or subcontractor, shall be prima facie proof of the use of such materials, machinery or equipment in the erection and construction of such building or other structure and of the improvements appurtenant thereto, and upon the proving of such facts, the burden of showing that such materials, machinery and equipment were not used in such building or other structure or improvement appurtenant thereto shall be upon the owner or other person disputing such use thereof.(1917, c. 6, §16; Code 1923, c. 75, §16.)

§29. Lien on Several Structures.—Any materialman or furnisher of machinery or other equipment necessary to the performance of any one such general or subcontract, who shall furnish such materials, machinery or other equipment in quantities for use in more than one building or other structure or improvement appurtenant thereto, and any workman, laborer or other person who shall perform work or labor upon more than one such building or other structure or improvement appurtenant thereto, provided for in such contract, shall have a lien upon all of such buildings and other structures and improvements into which his materials were put or upon which his work and labor was expended and upon the interest of the owner in and to the lot of ground upon which all of such buildings and structures stand or to which they may be removed, and such lien may be perfected and preserved by one notice thereof to such owner and by one recordation thereof, and it shall not be necessary for such lienor to give and record a notice as to each separate building or structure or improvement thereto.(1917, c. 6, §17; Code 1923, c. 75, §17.)

§30. Compensation of Contractor on Default of Owner.—When the owner fails to perform his part of the contract and by reason thereof the other party, without his own default, is prevented from completely performing his part, he shall be entitled to reasonable compensation for so much as he shall have performed, in proportion to the price stipulated for the whole, and shall have such a lien as is provided in this article, to secure payment thereof, when such lien is properly perfected and preserved according to the provisions of this article.(Code 1868, c. 75, §6; 1872-3, c. 139, §6; 1879, c. 84, §6; 1882, c. 64, §6; 1917, c. 6, §18; Code 1923, c. 75, §18.)

§31. Laborer’s Lien Against Corporation; Priority.—Every workman, laborer or other person who shall do or perform any work or labor, for any incorporated company doing business in this State, by virtue of a contract either directly with such incorporated company or with its general contractor or with any subcontractor, shall have a lien for the value of such work or labor upon all real estate and personal property of such company, and such lien shall have priority over any lien created by deed or otherwise on such real estate or personal property, subsequent to the time when such labor was performed, but there shall be no priority of lien as between the parties claiming under the provisions of this section.(1872-3, c. 139, §10; 1882, c. 64, §7; 1917, c. 6, §19; Code 1923, c. 75, §19.)

§32. Lien Notice in Cases of Laborer’s Claim Against a Corporation.—Such lien shall be discharged unless the person desiring to avail himself thereof, within ninety days from the time he shall have ceased to work or labor for such incorporated company or for such contractor, shall file with the clerk of the county court of the county in which such work or labor was performed, or in which the principal office, works, real estate or personal property of such incorporated company is situated, a notice of lien containing the amount due him after allowing all credits, which notice shall be sworn to by the person claiming such lien, or by some one in his behalf.(1882, c. 64, §8; 1917, c. 6, §20; Code 1923, c. 75, §20.)

§33. Record by Clerk in Cases of Laborer’s Lien Against a Corporation.—The clerk of the county court, to whom the notice of lien mentioned in the preceding section is presented, shall record the same in the mechanic’s lien record.(1882, c. 64, §9; 1917, c. 6, §21; Code 1923, c. 75, §21.)

§34. Time Within Which Suit to Enforce Lien May be Brought; Rights of Other Lienors.—Unless a suit in chancery to enforce any lien authorized by this article is commenced within six months after the person desiring to avail himself thereof shall have filed his notice in the clerk’s office, as hereinbefore provided in this article, such lien shall be discharged; but a suit commenced by any person having such lien shall, for the purpose of preserving the same, inure to the benefit of all other persons having a lien under this article on the same property, and such persons may intervene in such suit for the purpose of enforcing their liens, in the same manner as in other chancery suits.(Code 1868, c. 75, §§7, 8; 1872-3, c. 139, §§7, 8; 1879, c. 84, §8; 1882, c. 64, §10; 1917, c. 6, §22; Code 1923, c. 75, §22.)

§35. Decree in Suit to Enforce Lien; Personal Decree.—If the lien or liens be established in favor of any of the creditors whose claims are presented in the suit mentioned in the preceding section, the court shall order a sale of the property on which the liens are established, or so much thereof as may be sufficient to satisfy such claims, in like manner as in other suits in chancery, and the court may, in addition, give a personal decree in favor of such creditors for the amount of their claims against any party against whom they may be established, and such decree shall have the effect of, and be enforced as, other decrees for money.(Code 1868, c. 75, §9; 1872-3, c. 139, §9; 1879, c. 84, §9; 1882, c. 64, §12; 1917, c. 6, §23; Code 1923, c. 75, §23.)

§36. Discharge and Release of Lien.—When a debt secured by any lien mentioned in this article is fully paid at any time after the lien creditor shall have filed his notice of such lien in the office of the clerk of the county court, such creditor or assignee shall cause the clerk to enter a discharge of such lien in the margin of the book in which such account is entered and immediately opposite thereto, or shall execute a release thereof, which shall be recorded in the book in which such notice is entered and noted on the margin of such notice.(Code 1868, c. 75, §10; 1872-3, c. 139; 1879, c. 84, §10; 1882, c. 64, §13; 1917, c. 5, §25; Code 1923, c. 75, §25.)

§37. Refusal to Execute Release; Execution by Clerk.—In case of the refusal of the party holding such lien to cause such clerk to enter a discharge of such lien, or to execute a release of such lien, in the manner provided in the preceding section of this article, upon the request of the party entitled to such discharge or release, the circuit court of the county, or the judge thereof in vacation, in which such lien is recorded may, on motion, after reasonable notice to the party so refusing, and if no good cause be shown against it, direct the clerk of the county court to enter such discharge, which shall thereupon have the effect of a discharge entered under the provisions of the preceding section. Such proceeding shall be at the cost of the party so refusing.

§38. Enforcement of Lien by Executor, Administrator, or Assignee.—The executor or administrator of any person entitled to a lien under this article, or any assignee of the claim upon which such lien is based, shall be entitled to such lien, and to the right to perfect and enforce such lien, in the same manner and to the same extent as the testator, intestate, or assignor could have done, had he remained the owner of such claim.

§39. Public Building; Bond of Contractor; No Lien in Such Case.—It shall be the duty of the state board of control, and of all county courts, boards of education, boards of trustees, and other legal bodies having authority to contract for the erection, construction, improvement, alteration or repair of any public building or other structure, or any building or other structure used or to be used for public purposes, to require of every person to whom it shall award, and with whom it shall enter into, any contract for the erection, construction, improvement, alteration or repair of any such public building or other structure used or to be used for public purposes, that such contractor shall cause to be executed and delivered to the secretary of such board or other legal body, or other proper and designated custodian of the papers and records thereof, a good, valid, solvent and sufficient bond, in a penal sum equal at the least to the reasonable cost of the materials, machinery, equipment and labor required for the completion of such contract, and conditioned that in the event such contractor shall fail to pay in full for all such materials, machinery, equipment and labor delivered to him for use in the erection, construction, improvement, alteration or repair of such public building or other structure, or building or other structure used or to be used for public purposes, then such bond and the sureties thereon shall be responsible to such materialman, furnisher of machinery or equipment, and furnisher or performer of such labor, or their assigns, for the full payment of the full value thereof.

All such bonds shall have as surety thereon either some incorporated bonding and/or surety company authorized to carry on business in this State, or in lieu of such corporate surety the contractor may deposit as security for such bond with the said state board of control, county court, board of education, board of trustees or other legal body having authority so to contract, a sum in cash or bonds and securities of the United States of America or of the State of West Virginia of sufficient amount and value equal at least to the reasonable cost of materials, machinery, equipment and labor required for the completion of such contract. Immediately upon the acceptance of either of said bonds by the state board of control, county court, board of education and board of trustees, or other legal body, the bond shall be recorded by the secretary of such board or other legal body, or by the proper designated custodian of the papers or records thereof, in the office of the clerk of the county court of the county or counties wherein such work is to be done and where such materials, machinery or equipment are to be delivered, and no such contract shall be binding and effective upon either party or parties thereto until such bond has been executed, delivered and recorded as aforesaid.

Nothing in this article shall be construed to give a lien upon such a public building or improvement as is mentioned in this section, or upon the land upon which such public building or improvement is situated.(1917, c. 6, §12; Code 1923, c. 75, §12; 1929, c. 76.)

§1. Effect of Decrees and Orders; Enforcement.—A decree for land or specific personal property and a decree or order requiring the payment of money shall have the effect of a judgment for such land, property or money, and be embraced by the word “judgment” where used in this or in articles four, five and six of this chapter. But a decree or order in chancery, other than for the payment of money, or a decree or order for alimony or maintenance, may be enforced as it might have been if this and the following section had not been enacted.(Code 1849, c. 186, §1; Code 1860, c. 186, §1; Code 1868, c. 139, §1; 1882, c. 126, §1; Code 1923, c, 139, §1.)

§2. Decree for Payment of Money; Execution.—The persons entitled to the benefit of any decree or order requiring the payment of money shall be deemed judgment creditors, although the money may be required to be paid into a court or a bank or other place of deposit. In such case an execution on the decree or order shall make such recital thereof, and of the parties to it, as may be necessary to designate the case; and if a time be specified in the decree or order within which the payment is to be made, the execution shall not issue until the expiration of that time.(Code 1849, c. 186, §2; Code 1860, c. 186, §2; Code 1868, c. 139, §2; 1882, c.126, §2; Code 1923, c. 139, §2.)

§3. Meaning of Word “Judgment”.—In the following two sections the word “judgment” shall include any undertaking, bond or recognizance which has the force of a judgment.(Code 1849, c. 186, §3; Code 1860, c. 186, §3; Code 1868, c. 139, §3; 1882, c. 126, §3; Code 1923, c. 139, §3.)

§4. Abstract of Judgment; Penalty.—The clerk of every court of this State shall, without delay, make out and deliver a duly certified abstract of every judgment rendered by such court, and every justice of the peace shall, without delay, make out and deliver a duly certified abstract of every judgment rendered by him or by any other justice, the docket of which judgment is in his possession and under his control, to any person interested therein who may demand the same, and pay or tender the fee therefor, in which abstract shall be stated: (a) The names in full of the plaintiff or plaintiffs, and the defendant or defendants, as they appear in the papers and proceedings in the cause, and if the defendants are sued as partners, the individual names of such defendants, and also the partnership name shall be stated; (b) the amount of the judgment and the amount of the costs, stating each separately; (c) the value of the specific property (if any) recovered by it, and the damages, if any, for its detention; (d) the date of the judgment and the court in which, or the justice by whom, the judgment was rendered. Any clerk or justice who shall fail to deliver such abstract as herein required shall, together with the sureties in his official bond, be liable to the person injured by such failure for the amount of his injury, or such injured person may, at his option, recover fifty dollars from such clerk or justice.(Code 1849, c. 186, §4; Code 1860, c. 186, §4; Code 1868, c. 139, §4; 1877, c. 68, §4; 1882, c. 126, §4; 1901, c. 75, §4; Code 1923, c. 139, §4.)

§5. Docketing of Judgment.—The clerk of every county court shall keep in his office, in a well-bound book, a judgment docket, in which he shall docket without delay any judgment rendered by any justice of the peace or court of this State or by any court of the United States within this State, upon the delivery to him of an authenticated abstract thereof for that purpose, and the payment or tender of his fee therefor. In such docket there shall be stated, in separate columns: (a) The names in full of the plaintiff or plaintiffs, and the defendant or defendants, as they are stated in such abstract, and if it appear by such abstract that the defendants were sued as partners, their partnership name as well as their individual names shall be stated; (b) the amount of the judgment and of the costs, stating each separately; (c) the value of any specific property recovered by the judgment, and the damages (if any) for its detention; (d) the date of the judgment; (e) the court in which or the justice by whom it was rendered; (f) the date of docketing the judgment; (g) there shall also be a column for the notation of executions, if any shall be issued, upon the judgment. Every judgment, docketed by the clerk of the county court as aforesaid, shall at the same time be indexed by him in an index to be kept in or annexed to such judgment docket, such index showing the full name of the defendant, and, if more than one defendant, the full name of each, as they appear in such abstract. If the defendants are sued as partners, it shall also be indexed in the partnership name appearing in such abstract. Any clerk of a county court failing to perform any duty required of him by this section, or by section eight of this article, shall, together with the sureties in his official bond, be liable to the person injured by such failure for the amount of his injury, or such injured person may, at his option, recover fifty dollars from such clerk.(Code 1849, c. 186, §4; Code 1860, c. 186, §4; Code 1868, c. 139, §4; 1877, c. 68, §4; 1882, c. 126, §4; 1901, c. 75, §4; Code 1923, c. 139, §4.)

§6. Lien of Judgment on Real Estate.—Every judgment for money rendered in this State, other than by confession in vacation, shall be a lien on all the real estate of or to which the defendant in such judgment is or becomes possessed or entitled, at or after the date of such judgment, or if it was rendered in court, at or after the commencement of the term at which it was so rendered, if the cause was in such condition that a judgment might have been rendered on the first day of the term; but if from the nature of the case judgment could not have been rendered at the commencement of the term, such judgment shall be a lien only on or after the date on which such judgment or decree could have been rendered and not from the commencement of the term; but this section shall not prevent the lien of a judgment or decree from relating back to the first day of the term merely because the case shall be set for trial or hearing on a later day of the term, if such case was matured and ready for hearing at the commencement of the term, nor merely because an office judgment in a case matured and docketed at the commencement of the term does not be come final until a later day of the term. A judgment by confession in vacation shall also be a lien upon such real estate, but only from the time of day at which such judgment is confessed. Such lien shall continue so long as such judgment remains valid and enforceable, and has not been released or otherwise discharged.(Code 1849, c. 186, §6; Code 1860, c. 186, §6; Code 1868, c. 139, §5; 1882, c. 126, §5; Code 1923, c. 139, §5.)

§7. Judgment Lien Not Good as Against Bona Fide Purchasers Unless Docketed, Etc.—No judgment shall be a lien as against a purchaser of real estate for valuable consideration without notice, unless it be docketed according to the fifth section of this article, in the county wherein such real estate is, before a deed therefor to such purchaser is delivered for record to the clerk of the county court of such county; nor shall such judgment, though it be docketed as aforesaid, be a lien, after ten years from its date as against such a purchaser who purchases after such ten years, unless within such ten years an execution shall have issued on such judgment and such execution or a copy thereof be filed in the office of such clerk, or, unless such purchaser have actual notice of the fact that such execution was issued, though it was not so filed; nor shall such judgment, though it be docketed as aforesaid, and though one or more executions shall have issued thereon and shall have been filed as aforesaid, be a lien, after ten years from the date of the last execution so filed, as against such a purchaser who purchases after such ten years, unless such purchaser have notice of the issuing of an execution within ten years preceding the date of such purchase.(Code 1849, c. 186, §8; Code 1860, c. 186, §8; Code 1868, c. 139, §7; 1877, c. 68, §7; 1882, c. 126, §6; 1909, c. 47; 1921, c. 64, §6; Code 1923, c. 139, §6.)

§8. Notation of Execution on Judgment Lien Docket.—It shall be the duty of the clerk of the county court, upon the filing of the execution, or a copy thereof, as provided in the preceding section, or upon the filing of any execution issued by any court of the United States within this State, to note on the judgment lien docket, in the column provided for such notation, or on the margin of the record of such judgment, the date on which such execution issued and the date of the filing thereof.(1909, c. 47; 1921, c. 64, §6; Code 1923, c. 139, §6.)

§9. Enforcement of Judgment by Suit.—The lien of a judgment may be enforced in a court of equity after an execution or fieri facias thereon has been duly returned to the office of the court or to the justice from which it issued showing by the return thereon that no property could be found from which such execution could be made: Provided, That such lien may be enforced in equity without such return when an execution or fieri facias has not issued within two years from the date of the judgment. If it appear to such court that the rents and profits of the real estate subject to the lien will not satisfy the judgment in five years, the court may decree such real estate, or any part thereof, to be sold and the proceeds applied to the discharge of the judgment.(Code 1849, c. 186, §9; Code 1860, c. 186, §9; Code 1868, c. 139, §8; 1872, c. 30; 1882, c. 126, §7; 1891, c. 95, §7; Code 1923, c. 139, §7.)

§10. Parties.—In every suit in equity to enforce a judgment, all persons having liens on the real estate sought to be subjected, by judgment or otherwise, shall be made parties plaintiff or defendant, or if the number of such persons exceed ten, the suit may be brought by any one or more of them, for the benefit of himself and such other lien holders as will come in and contribute to the expenses of the suit. And whether the suit be so brought or not, every such lien holder, whether he be named as a party to the suit or not, or whether he be served with process therein or not, may present, prove and have allowed any claim he may have against the judgment debtor, which is a lien on such real estate, or any part thereof, and from and after the time he presents any such claim he shall be deemed a party plaintiff in such suit.(1882, c. 126, §7; 1891, c. 95, §7; Code 1923, c. 139, §7.)

§11. Notice to Lien Holders.—No decree for the distribution of the proceeds of real estate in a a suit in equity to enforce a judgment shall be if made until a notice to all persons holding liens on the real estate of the judgment debtor be published, under a decree of the court, as hereinafter provided. Such notice shall be sufficient if it be in form or effect as follows:

Such notice shall be published once in each week, for three successive weeks, in some newspaper printed in the county, or, if none be printed therein, in some newspaper of general circulation in the county; and such publishing of such notice shall be equivalent to the personal service thereof on all persons holding liens on any such real estate, unless the court shall, in the decree directing such notice to be so published, otherwise order.(1882, c. 126, §7; 1891, c. 95, §7; Code 1923, c. 139, §7.)

§12. Duties of Commissioner.—The commissioner to whom the case is referred by such decree shall, as soon as possible after such notice is published as aforesaid, or served in such manner as the court may order, proceed to ascertain and report all the liens on the real estate or any part thereof of the judgment debtor, the holders of such liens, the amount due to each, and the priorities thereof, and such other matters and things as the court by its decree may direct, and the same proceedings shall be had on such report as in other suits in chancery.(1882. c. 126, c §7; 1891, c. 95, §7; Code 1923, c. 139, §7.)

§13. Confirmation of Report; Sale.—When the report of any such commissioner is confirmed, if the claims therein reported (if any) be not paid, the court shall decree that so much of the real estate of the judgment debtor as may be necessary, and which is subject to such lien or liens, shall be rented or sold, and the proceeds thereof distributed among the several lien holders who have appeared and proved their liens and claims, according to their several priorities, if any; which decree shall be a bar to the claim of any lien holder who has not appeared and presented his claim to such commissioner, as required by such notice, except that if a surplus remain after the payment of the claims so presented and proved and confirmed by the court, the lien holder so failing to appear may share in such surplus, upon proving his claim at any time before a final decree in the case, in such manner as the court shall direct. But if he fail to present his claim before such final decree, he shall be forever barred of all right to participate in the proceeds of such real estate so far as the other creditors of such judgment debtor, holding liens on such real estate, who have not so failed, are concerned.(1882, c. 126, §7; 1891, c. 95, §7; Code 1923, c. 139, §7.)

§14. Judgment Pending Suit to Enforce Lien.—If, pending any such suit, a judgment at law be recovered by any person against such judgment debtor, such person may present his claim to the commissioner and have it adjudicated and allowed in the same manner and to the same extent as if the judgment had been obtained before the institution of such suit. And he may present such claim to the court after the report is made, and before the entering of a decree distributing the proceeds of the sale of such real estate, and have the same adjudicated and passed upon by the court, and if found to be correct and a lien upon such real estate, the court shall allow and confirm the same, and provide for the payment thereof in the decree of sale and distribution.(1882, c. 126, §7; 1891, c. 95, §7; Code 1923, c. 139, §7.)

§15. Other Proceeding Pending Suit to Enforce Lien.—If, after the commencement of a suit to enforce a judgment lien, any lien holder commence any other suit or proceeding in or out of court to enforce a lien claimed by him on the real estate, or any part thereof, of the judgment debtor, upon which a lien is sought to be enforced by such suit, the court, or the judge thereof in vacation, may enjoin him from so doing and require him to come in and assert his lien in such suit, or make such order or decree in relation thereto as to such court or judge may seem right and proper to protect the interest of all parties having such liens.(1882, c. 126, §7; 1891, c. 95, §7; Code 1923, c. 139, §7.)

§16. Order of Liability of Real Estate.—Where the real estate liable to the lien of a judgment is more than sufficient to satisfy the same, and it, or any part of it, has been aliened, as between the alienees, that which was aliened last shall, in equity, be first liable, and so on with other successive alienations until the whole judgment is satisfied, except that where any prior alienee has not recorded his deed or conveyance another parcel of the judgment debtor’s land, subsequently aliened to a purchaser for value and without notice of the prior alienation, shall be considered as having been aliened prior to the aforesaid unrecorded alienation. But any part of such real estate retained by the debtor himself shall be first liable to the satisfaction of the judgment.(Code 1849, c. 186, §10; Code 1860, c. 186, §10; Code 1868, c. 139, §9; 1882, c. 126, §8; Code 1923, c. 139, §8.)

§17. Judgment Liens Commencing on Same Day.—Where two or more judgments are rendered against the same person, and the liens thereof on his real estate commence on the same day, the creditors having such judgments shall be entitled to satisfaction out of such real estate ratably.(Code 1849, c. 186, §11; Code 1860, c. 186, §11; Code 1868, c. 139, §10; 1882, c. 126, §9; Code 1923, c. 139, §9.)

§18. Limitation on Enforcement of Judgments.—On a judgment, execution may be issued within ten years after the date thereof. Where execution issues within ten years as aforesaid, other executions may be issued on such judgment within ten years from the return day of the last execution issued thereon, on which there is no return by an officer or which has been returned unsatisfied. An action, suit or scire facias may be brought upon a judgment where there has been a change of parties by death or otherwise at any time within ten years next after the date of the judgment; or within ten years from the return day of the last execution issued thereon on which there is no return by an officer or which has been returned unsatisfied. But if such action, suit or scire facias be against the personal representative of a decedent, it shall be brought within five years from the qualification of such representative.(Code 1849, c. 186, §12; Code 1860, c. 186, §12; Code 1868, c. 139, §11; 1882, c. 126, §10; 1919, c. 20, §10; Code 1923, c. 139, §10.)

§19. Exceptions to Limitations.—No execution shall issue, nor any action, suit or scire facias be brought on any judgment in this State after the time prescribed in the preceding section, except that in computing the time, any time during which the right to sue out execution on the judgment is suspended by the terms thereof, or by legal process, shall be omitted from the computation; and sections fifteen, sixteen, seventeen and eighteen, article two, chapter fifty-five of this Code shall apply to the right to bring such action, suit or scire facias, in like manner as to any right, action, suit or scire facias mentioned in those sections; and except that when the judgment is for a sum ascertained, and such further sums as may be afterwards assessed, or be found due upon a scire facias assigning a further breach, as provided in section thirty, article six, chapter fifty-six of this Code, such scire facias may be brought within ten years after such breach.(Code 1849, c. 186, §13; Code 1860, c. 186, §13; Code 1868, c. 139, §12; 1882, c. 126, §11; Code 1923, c. 139, §11.)

§1. Executions Against Corporations.—Against a corporation such execution may issue as against a natural person.(Code 1849, c. 187, §1; Code 1860, c. 187, §1; Code 1868, c. 140, §1; Code 1923, c. 140, §1.)

§2. Executions on Joint Judgments.—Where a judgment is against several persons jointly, executions thereon shall be joint against them all.(Code 1849, c. 187, §1; Code 1860, c. 187, §1; Code 1868, c. 140, §1; Code 1923, c. 140, §1.)

§3. Execution for Benefit of Person Other Than Plaintiff.—Where an execution issues on a judgment for the benefit, in whole or in part, of any person other than the plaintiff, if that fact appear by the record, the clerk shall, in the execution or an indorsement thereon, state the extent of the interest therein of such person, and such person may, as a party injured, either in his own name or that of the plaintiff, prosecute a suit or motion against the officer.(Code 1849, c. 187, §3; Code 1860, c. 187, §3; Code 1868, c. 140, §3; Code 1923, c. 140, §3.)

§4. Writs of Possession for Specific Property ; Fieri Facias for Damages.—On a judgment for the recovery of specific property, real or personal, a writ of possession may issue for the specific property, which writ shall conform to the judgment as to the description of the property, and the estate, title, or interest recovered. On such a judgment a writ of fieri facias or execution may also be issued for the damages or profits and costs.(Code 1849, c, 187, §4; Code 1860, c. 187, §4; Code 1868, c. 140, §4; Code 1923, c. 140, §4.)

§5. Execution on Money Judgment; Fieri Facias.—On a judgment for money, there may be issued an execution known as a writ of fieri facias.(Code 1849, c. 187, §2; Code 1860, c. 187, §2; Code 1868, c. 140, §2; Code 1923, c. 140, §2.)

§6. On What Fieri Facias May be Levied.—By a writ of fieri facias, the officer shall be commanded to make the money therein mentioned out of the personal property of the person against whom the judgment is. The writ may be levied upon goods and chattels, current money and bank notes, stamps, certificates of stock in a corporation, negotiable warehouse receipts, negotiable instruments, or any other negotiable evidences of indebtedness calling for a liquidated sum of money, belonging to the person against whom the judgment is.(Code 1849, c. 187, §11; Code 1860, c. 187, §11; Code 1868, c. 140, §5; Code 1923, c. 140, §5.)

§7. How Currency or Bank Notes Shall be Accounted for.—If the levy be upon gold or silver coin or other currency which is legal tender in the United States, the same shall be accounted for at its par value as so much money made under the execution. If it be upon bank notes or currency which are not legal tender in the United States, and the creditor will not take them at their nominal value, they shall be sold and accounted for as any other property taken under execution.(Code 1849, c. 187, §12; Code 1860, c. 187, §12; Code 1868, c. 140, §6; Code 1923, c. 140, §6.)

§8. Lien of Fieri Facias; Its Duration.—A writ of fieri facias or execution shall create a lien, from the time it is delivered to the sheriff or other officer to be executed, upon all of the personal property, or the estate or interest therein, owned by the judgment debtor at the time of such delivery of the writ, or which he may acquire on or before the return day thereof, although such property was not levied on or capable of being levied on under the provisions of section six of this article. Such lien shall continue beyond the return day of the execution, whether the writ was levied or not, but shall cease whenever the right of the judgment creditor to levy the writ under which such lien arose, or to levy a new writ, ceases, under the provisions of section eighteen, article three of this chapter, or when such right is suspended by a forthcoming bond being given or forfeited, or by an appeal or otherwise. The lien created by this section shall be subject to the provisions of sections nine and ten of this article.(Code 1849, c. 187, §11, c. 188, §§3, 4; Code 1860, c. 187, §11, c. 188, §§3, 4; Code 1868, c. 140, §5, c. 141, §§2, 3; 1872-3, c. 218, §§2, 3; 1882, c. 127, §§2, 3; Code 1923, c. 140, §5, c. 141, §§2, 3.)

§9. Purchaser for Value Takes Free of Lien.—The lien of a writ of fieri facias shall not be good as against a purchaser or assignee of the property subject to the lien, for a valuable consideration and without notice of such lien, unless, at the time of such purchase or assignment, the writ shall have been actually levied upon the property, and the property shall have been in the actual possession of the officer or of some person, other than the judgment debtor, holding such property for the officer. If the property, upon which such writ is a lien, is a debt or liability of some third person to pay money or deliver property to the judgment debtor, any payment or delivery made by such third person to the judgment debtor or his assignee, before such third person has notice of the writ, shall be good, and such person shall be discharged, to the extent of such payment or delivery, from any liability to the judgment creditor: Provided, however, That if the evidence of such debt or liability of such third person is a writing of such a nature that it could be levied on under the provisions of section six of this article, and if such writing has been levied on and taken into the possession of the officer under the writ, such levy shall constitute notice to such third person of the lien of such fieri facias.(Code 1849, c. 187, §11, c. 188, §3; Code 1860, c. 187, §11, c. 188, §3; Code 1868, c. 140, §5, c. 141, §2; 1872-3, c. 218, §2; 1882, c. 127, §2; Code 1923, c. 140, §5, c. 141, §2.)

§10. Docketing as Constructive Notice.—The docketing of an execution as provided in the following section of this article shall constitute constructive notice to all persons, of such execution: Provided, however, That if the property upon which such execution is a lien be a negotiable instrument, a holder in due course of such instrument shall hold it free from the lien of such execution, whether such execution be docketed or not, and if the property be a debt or liability of a third person to the judgment debtor, whether such debt or liability be negotiable or not, any payment made by such third person to such judgment debtor shall discharge such third person from all further liability, to the extent of such payment, whether such execution be docketed or not, unless such third person had actual notice of such execution: Provided further, That any sale of property made by a merchant, dealer, or manufacturer in the regular course of the business of such person, shall pass such goods free from the lien of an execution, whether it be docketed or not.(1872-3, c. 218, §§2, 3; 1882, c. 127, §§2, 3; Code 1923, c. 141, §2.)

§11. Docketing of Execution.—The clerk of the county court of every county shall keep in his office, in a well-bound book, an execution docket, in which he shall docket without delay, any execution in this State, when he shall be required so to do by any person interested, on such person delivering to him an authenticated abstract of it, for which he shall be entitled to the same fee as for docketing a judgment. In such abstract and docket there shall be stated in separate columns: (a) The full name of the plaintiff or plaintiffs, and of the defendant or defendants, and if the defendants are sued as partners, the name of the partnership; (b) the amount of the execution; (c) the date of the execution; (d) the day and hour when received by the sheriff or other officer; (e) when returnable; (f) the date of docketing.(1872-3, c. 218, §2; 1882, c. 127, §2; Code 1923, c. 141, §2.)

§12. Exemption From Execution.—Such property as a husband or parent may have listed and set apart as exempt from distress and levy, under the provisions of law, shall not be subject to the lien of a fieri facias.(Code 1849, c. 188, §3; Code 1860, c. 188, §3; Code 1868, c. 141, §2; 1872-3, c. 218, §2; 1882, c. 127, §2; Code 1923, c. 141, §2.)

§13. Indorsement of Time of Receipt by Officer.—Every officer shall indorse on each writ of fieri facias the year, month, day, and time of day, he receives the same. If he fail to do so, the judgment creditor may, by motion, recover against him and his sureties, jointly and severally, in the court in which the judgment was rendered, a sum not exceeding fifteen per cent upon the amount of the execution.(Code 1849, c. 187, §13; Code 1860, c. 187, §13; Code 1868, c. 140, §7; Code 1923, c. 140, §7.)

§14. Order of Levy of Several Writs.—Of writs of fieri facias, that which was first delivered to the officer, though two or more be delivered on the same day, shall be first levied and satisfied; and where several such executions are delivered to the officer at the same time, they shall be satisfied ratably.(Code 1849, c. 187, §14; Code 1860, c. 187, §14; Code 1868, c. 140, §8; Code 1923, c. 140, §8.)

§15. Rules Concerning Distress or Levy.—The officer shall in no case make an unreasonable distress or levy. For horses or any livestock distrained or levied upon, he shall provide sufficient sustenance while they remain in his possession. Nothing distrained or levied upon shall be removed by him out of his county, unless it is otherwise specially provided.(Code 1849, c. 49, §§35, 36; Code 1860, c. 49, §§35, 36; Code 1868, c. 41, §19; 1881, c. 19, §19; Code 1923, c. 41, §19.)

§16. Officer’s Return Upon Fieri Facias.—Upon a writ of fieri facias the officer shall make a return showing whether or not the money therein mentioned has been or can be made, or whether any part thereof, and if so, what part, has been or can be made. With every execution under which money is recovered, he shall return a statement of the amount received, including his fees and other charges; and such amount, except such fees and charges, he shall pay to the person entitled, or to his agent or attorney.(Code 1849, c. 187, §15; Code 1860, c. 187, §15; Code 1868, c. 140, §9; Code 1923, c. 140, §9.)

§17. Resale Upon Default of Purchaser.—If at any sale by an officer, the purchaser shall not comply with the terms of sale, the officer may resell the property, either forthwith or under a new advertisement, or return that the property was not sold for want of bidders. If, on a resale, the property be sold for less than it sold for before, the first purchaser shall be liable for the difference to the creditor, so far as is required to satisfy him, and to the debtor for the balance. This section shall not prevent the creditor from proceeding as he might have done if it had not been enacted.(Code 1849, c. 187, §16; Code 1860, c. 187, §16; Code 1868, c. 140, §10; Code 1923, c. 140, §10.)

§18. Writ of Venditioni Exponas.—When it appears by the return on an execution, that property taken to satisfy it remains unsold, a writ of venditioni exponas may issue; whereupon the like proceedings shall be had as might have been had on the first execution, except that if it issue upon a return of no sale for want of bidders, or of a sufficient bid, the notice shall state the fact, and that the sale will be made peremptorily.(Code 1849, c. 187, §17; Code 1860, c. 187, §17; Code 1868, c. 140, §11; Code 1923, c. 140, §11.)

§19. Proceeding in Case of Death of Officer Before Sale.—If an officer, taking property under execution, dies before the sale thereof, and there be no deputies of such officer acting in the case, a writ of venditioni exponas may, upon a suggestion of the fact, be directed to such sheriff or other officer of the county wherein the property was taken as may be in office at the time the writ issues. Whereupon the officer to whom the writ is directed shall take possession of the property previously levied upon, whether the same be in the possession of the representative of the deceased officer or the execution debtor, and proceed to advertise and sell it and account for the proceeds thereof in like manner as if the levy had been made by himself.(Code 1849, c. 187, §18; Code 1860, c. 187, §18; Code 1868, c. 140, §12; Code 1923, c. 140, §12.)

§20. Notice of Sale Under Levy.—In an case where an officer shall levy upon personal property, otherwise than under an execution or order issued by a justice, or under an attachment, and in any case in which he may be directed to sell personal property by an order of a court or judge, unless such order prescribes a different course, he shall fix upon a time and place for the sale thereof, and publish notice of such sale at least ten days by posting the same at the door of the courthouse of his county and some other conspicuous place near the residence of the owner, if he resides in the county: Provided, That any sheriff or other officer proceeding to sell under a writ of fieri facias or venditioni exponas, if the property be of the value of five hundred dollars or more, shall advertise the sale for one publication each week for two weeks in a newspaper in his county, if one be published therein, the cost of which advertisement shall not exceed the price prescribed in section thirty-four, article one, chapter fifty-nine of this Code. If the property be perishable or expensive to keep, it may be sold by order of the court, or the judge thereof in vacation, upon such notice as the court or judge may direct.

At the time and place so appointed the officer shall sell to the highest bidder for cash, except as hereinafter provided in section twenty-three of this article, such personal property, or so much thereof as may be necessary.[Code 1849, c. 49, §37 ; Code 1860, c. 49, §37; 1863, c. 55, §37; Code 1868, c. 41, §20; 1872-3, c. 151, §4; 1875, c. 24, §21; 1881, c. 19, §20; Code 1923, c. 41, §20, c. 132, §1a(4).]

§21. Adjournment of Sale Under Execution.—When for any cause the sale is not completed on the day appointed therefor, it may be adjourned from day to day until it shall be completed.(Code 1849, c. 49, §39; Code 1860, c. 49, §39; Code 1868, c. 41, §22; 1881, c. 19, §22; Code 1923, c. 41, §22.)

§22. Appraisal.—If, before any such sale is made, the judgment debtor, his agent or attorney, or in their absence, his or her spouse, so desires, the property to be sold shall be appraised by separate items by two disinterested householders of the district in which the levy is made, or where the debtor resides, if he resides in the county, one to be selected by the judgment debtor, his agent or attorney, or, in their absence, his or her spouse, and the other by the judgment creditor, his agent or attorney, or in their absence, by the officer in whose hands the execution, order of sale or other process is, who, after being duly sworn for the purpose, shall appraise, at its fair cash value, each item of property to be sold, reduce their appraisement to writing, sign the same and deliver it to the officer whose duty it is to make the sale. If they do not agree as to the value of any item of property to be sold, such officer shall, on his official oath, act as umpire in the ease and his decision and that of one of such appraisers shall determine the value of such items. Such appraisement shall be returned by the officer with his execution, order of sale or other process.(1881, c. 19, §22; Code 1923, c. 41, §22.)

§23. Method and Terms of Sale.—The property appraised under the provisions of the preceding section shall be sold by the officer in separate items, or in parcels, or as a whole, whichever method will secure the highest price therefor. The property so appraised shall be first offered for sale for cash, and, if the highest aggregate bids therefor amount to two-thirds or more of its appraised value, the sale thereof shall be for cash; but if no bid be made therefor aggregating two thirds of its appraised value, the same shall then be offered for sale, one-half on a credit of four months and the residue on a credit of eight months, the purchaser giving his note with good security bearing interest from date. If when so offered a credit a greater aggregate sum be bid therefor than was offered in cash, the sale shall be made upon credit as aforesaid, otherwise the cash bid shall be accepted.(1881, c. 19, §22; Code 1923, c. 41, §22.)

§24. Payments on Notes.—All moneys paid in to the officer, on any note taken under the preceding section, shall be regarded as so much do money received by him on the execution, order of sale, or other process under which the sale was made, and the officer shall indorse the same on the execution, order of sale or other process, whether the same has been returned or not, at the time such payment is made.(1881, c. 19, §22; Code 1923, c. 41, §22.)

§25. Judgment on Purchase Money Notes.—If any note so taken be not paid to the officer when due, he shall indorse thereon any payments made to him and return it to the office of the clerk of the court from which such execution, order of sale or other process issued, who shall indorse thereon the date of such return, whereupon the clerk shall, without process or further proceedings, enter, in the law order book, judgment in favor of the officer upon such note for the amount remaining unpaid with interest. Such judgment shall be as final and valid as if entered by the court, except only that the court shall have such control of it as is given by article two, chapter fifty-eight of this Code.(1881, c. 19, §22; Code 1923, c. 41, §22.)

§26. Form of Judgment on Notes.—The judgment entered by the clerk under the provisions of the preceding section shall be in the following form or to the following effect:

§27. Disposition of Surplus by Officer.—Where an officer has received money under excution, if any surplus remain in his hands after satisfying the execution, such surplus shall be paid to the debtor; and if the debtor or his personal representative obtain an injunction or appeal staying an execution, in whole or in part, before money received under it, or any part of it, is paid over to the creditor, the officer shall pay such debtor the money so received and not so paid over, or so much thereof as the injunction or appeal may extend to, unless otherwise directed by law, or the order of the court.(Code 1849, c. 187, §19; Code 1860, c. 187, §19; Code 1868, c. 140, §13; Code 1923, c. 140, §13.)

§28. Liability of Officer for Money Received Under Execution.—No officer, receiving money under execution, when the person to whom it is payable resides in a different county from that in which the officer resides, shall be liable to have any judgment rendered against him or his sureties for the nonpayment thereof, until a demand of payment be made of such officer in his county by such creditor or his attorney at law, or some person having a written order from the creditor.(Code 1849, c. 187, §20; Code 1860, c. 187, §20; Code 1868, c. 140, §14; Code 1923, c. 140, §14.)

§29. Successive Executions.—Subject to the limitations prescribed by law, a party obtaining an execution may sue out other executions at his own costs, though the return day of a former execution has not arrived; and may sue out other executions at the defendant’s costs, where, on a former execution, there is a return by which it appears that the writ has not been executed, or that it or any part of the amount thereof is not levied, or that property levied on has been discharged by legal process, which does not prevent a new execution on the judgment. In no case shall there be more than one satisfaction for the same money or thing.(Code 1849, c. 187, §21; Code 1860, c. 187, §21; Code 1868, c. 140, §15; 1872-3, c. 124, §15; Code 1923, c. 140, §15.)

§30. New Execution Upon Scire Facias or Motion.—When property sold under execution, or its value, is recovered from an obligor in an indemnifying bond given before such sale, or from a purchaser having a right of action on such bond, the person having such judgment or execution, or his personal representative may, by scire facias, or motion after reasonable notice to the person or the personal representative of the person against whom the judgment or execution was, obtain a new execution against him in the latter case, for the amount for which the property sold, with interest from the day of sale, and in the other cases, for so much of the judgment as remains unpaid. Such scire facias shall be sued out, or such motion made, within five years after the right to sue out or make the same.(Code 1849, c. 187, §22; Code 1860, c. 187, §22; Code 1868, c. 140, 16; Code 1923, c. 140, §16.)

§31. Motion to Quash Execution.—A motion to quash an execution may, after reasonable notice to the adverse party, be heard and decided by the court whose clerk issued the execution, or by the judge thereof in vacation; and such court or judge may, without such notice, make an order staying proceedings on the execution until such motion can be heard and determined. A copy of the order so made must be served upon the officer in whose hands the execution is.(Code 1849, c. 187, §23; Code 1860, c. 187, §23; Code 1868, c. 140, §17; 1872-3, c. 124, §17; Code 1923, c. 140, §17.)

§32. Motion for Failure to Return Execution.—A motion against an officer or his sureties, or his or their representatives, for a failure to return an execution, shall be made within ten years from the return day thereof and not after.(Code 1849, c. 186, §14; Code 1860, c. 186, §14; Code 1868, c. 139, §13; 1882, c. 126, §12; Code 1923, c. 139, §12.)

§1. Ascertainment by Interrogatories of Estate Upon Which Fieri Facias or Execution is a Lien, and of Real Estate to Which Judgment Debtor is Entitled.—To ascertain the estate on which a writ of fieri facias issued by any court of record, or an execution issued by a justice of the peace, is a lien, and to ascertain any real estate in or out of this State to which a debtor named in such fieri facias or execution is entitled, upon application of the execution creditor, the clerk of the court from which the execution issued, or, if it was issued by a justice of the peace, the clerk of the circuit court of the county in which such justice resides, shall issue a summons against the execution debtor, or any officer of a corporation execution debtor having an office in this State, or any debtor or bailee of him or it, requiring the execution debtor to appear before a commissioner in chancery of the county from which the summons issued, or, if the execution creditor so directs, before a commissioner in chancery of the county in which such execution debtor resides, such commissioner and his county to be named in the summons; or against any debtor or bailee of such execution debtor, requiring such debtor or bailee to appear before a commissioner in chancery of the county where such debtor or bailee resides, such commissioner and his county to be named in the summons, such appearance to be made at a time and place to be designated therein, to answer upon oath such questions as shall be propounded at such time and place by counsel for the execution creditor, or by the commissioner.(Code 1849, c. 188, §5; Code 1860, c. 188, §5; Code 1868, c. 141, §4; 1872-3, c. 218, §4; 1882, c. 127, §4; 1921, c. 60, §4; Code 1923, c. 141, §4.)

§2. Time of Return of Summons and Appearance of Debtor.—The summons mentioned in the preceding section shall be directed to an officer of the county in which the commissioner before whom it is returnable resides, and shall be served in such county. Such summons shall be returnable not more than sixty days from its date. The debtor or other person served with such summons shall appear at the time and place mentioned and make answer under oath to the questions propounded.(Code 1849, c. 188, §5; Code 1860, c. 188, §5; Code 1868, c. 141, §4; 1872-3, c. 218, §4; 1882, c. 127, §4; 1821, c. 60, §4; Code 1923, c. 141, §4.)

§3. Record of Examination by Commissioner; Objections and Rulings Thereon.—Such questions and answers shall, if required by any party, be taken down in writing at the expense of the party requesting it and certified by the commissioner at the conclusion thereof. The commissioner shall enter in his proceedings, and report to the court whose clerk issued the summons aforesaid any and all objections taken by such debtor against answering any questions, and if the court afterwards sustain any one or more of such objections, the answers given, as to which objections are sustained, shall be held for naught in that or any other cause.(Code 1849, c. 188, §5; Code 1860, c. 188, §5; Code 1868, c. 141, §4; 1872-3, c. 218, §4; 1882, c. 127, §4; 1921, c. 60, §4; Code 1923, c. 141, §4.)

§4. Conveyance of Real Estate Outside the State, and Delivery or Assignment of Personal Estate to Officer.—Any real estate outside this State, to which it may appear by such examination that the execution debtor is entitled, shall be forthwith conveyed by him to the officer to whom was delivered such fieri facias or execution; and any money, bank notes, securities, evidences of debt, or other personal estate, which it may appear by such examination are in the possession or under the control of such debtor, though in the hands of some other person, shall be delivered by him, as far as practicable, to the same officer, or by such other person and in such manner as may be ordered by the commissioner; and any chose in action or other intangible property shall be assigned or conveyed to the officer.(Code 1849, c. 188, §6; Code 1860, c. 188, §6; Code 1868, c. 141, §5; 1872-3, c. 218, §5; 1882, c. 127, §5; 1921, c. 60, §5; Code 1923, c. 141, §5.)

§5. Compelling a Debtor to Answer.—If any person summoned under the four preceding sections shall fail to appear and answer, or shall make any answers which are deemed by the commissioner to be evasive, or if having answered shall fail to make such conveyance, assignment and delivery as is required by such sections, such commissioner shall issue a writ directed to the sheriff of the county requiring such sheriff to take the debtor or other person summoned and to keep him safely until he shall make proper answers, or such conveyance, delivery or assignment as the case may be, and upon making such answer or such conveyance, delivery or assignment, he shall be discharged by such commissioner. He may also be discharged by the court from whose clerk’s office the fieri facias or execution issued, or by the judge thereof in vacation, in any case, if the court or judge shall be of opinion that he was improperly or unlawfully detained in custody.(Code 1849, c. 188, §6; Code 1860, c. 188, §§6, 8; Code 1868, c. 141, §§5, 7; 1872-3, c. 218, §§5, 7; 1882, c. 127, §§5, 7; 1921, c. 60, §5; Code 1923, c. 141, §§5, 7.)

§6. Report by Commissioner.—The commissioner shall return all questions and answers taken down in writing before or filed with him and shall report all of the proceedings under the preceding sections to the court in which the judgment is, or, if the judgment be before a justice, to the circuit court of the county in which such justice resides.(Code 1849, c. 188, §7; Code 1860, c. 188, §7; Code 1868, c. 141, §6; 1872-3, c. 218, §6; 1882, c. 127, §6; Code 1923, c. 141, §6.)

§7. Disposition of Property.—The court to which the commissioner returns his report, as required by the preceding section, may make any order it may deem right as to the sale and proper application of the estate conveyed, delivered or assigned under section four of this article.(Code 1849, c. 188, §8; Code 1860, c. 188, §9; Code 1868, c. 141, §8; 1872-3, c. 218, §8; 1882, c. 127, §8; Code 1923, c. 141, §8.)

§8. Sale of Real Estate.—Real estate conveyed to an officer under this article shall, unless such court direct otherwise, be sold, after giving at least thirty days’ notice, by posting the same at the door of the courthouse of such officer’s county and some other conspicuous place, near the residence of the owner, if he be a resident of the county, and, if a newspaper be published in the county, such notice shall be inserted therein at least once a week for two successive weeks, and be conveyed to the purchaser by the officer or his deputy.(Code 1849, c. 188, §9; Code 1860, c. 188, §10; Code 1868, c. 141, §9; 1872-3, c. 218, §9; 1882, c. 127, §9; Code 1923, c. 141, §9.)

§9. Disposition of Personal Property and Collection of Debts.—An officer to whom there is a delivery under this article, when the delivery is of personal property which is subject to levy under the provisions of section six, article four of this chapter, shall dispose of the same as if levied on by him under a writ of fieri facias or execution, or when the property delivered or assigned is an evidence of debt, he may receive payment of such debt within sixty days after such delivery. Any evidence of debt or security in his hands which is not so subject to levy shall, at the end of sixty days, be returned by him to the clerk’s office of such court. The court shall make such order to enforce the payment of such debt or other security, as is deemed best. Upon failure to make such return, such officer may be proceeded against as if an express order of such court for such return had been disobeyed.(Code 1849, c. 188, §9; Code 1860, c. 188, §10; Code 1868, c. 141, §9; 1872-3, c. 218, §9; 1882, c. 127, §9; Code 1923, c. 141, §9.)

§10. Suggestion on Judgment; Summons Against Person Suggested.—Upon a suggestion by the judgment creditor that some person is indebted or liable to the judgment debtor or has in his possession or under his control personal property belonging to the judgment debtor, which debt or liability could be enforced, when due, or which property could be recovered, when it became returnable, by the judgment debtor in a law court, and which debt or liability or property is subject to the judgment creditor’s writ of fieri facias, a summons against such person may be sued out of the office of the clerk of the circuit court of the county in which such person so indebted or liable, or so having such personal property, resides, or, if he be a nonresident of the State, in the county in which he may be found, upon an attested copy of such writ of fieri facias being filed with such clerk to be preserved by him in his office, requiring such person to answer such suggestion in writing and under oath. The return day of such summons shall be the next term of such court.(Code 1849, c. 188, §10; Code 1860, c. 188, §11; Code 1868, c. 141, §10; 1872-3, c. 218, §10; 1882, c. 127, §10; Code 1923, c. 141, §10.)

§11. Officer’s Return.—The officer serving such summons upon a person suggested shall make a return of the time and manner of service on each person suggested.

§12. Discharge of Liability of Person Suggested.—If the debt or liability of the person suggested to the judgment debtor for the money or property owed or held by such person be evidenced by a negotiable instrument, and such instrument be negotiated after service on, or notice to, the person suggested, to a holder in due course, so that such person becomes obligated to pay the money or deliver the property to such holder, the lien of the fieri facias thereon shall, to the extent of such obligation to such holder, be discharged.

§13. Answer of Person Suggested.—The answer of the person suggested shall state, in addition to the matters required to be disclosed by the summons mentioned in section ten of this article, whether the liability of such person, or any part thereof, is represented by a negotiable instrument, and, in the case of a bailee, whether there is outstanding any negotiable warehouse receipt, bill of lading, or other negotiable instrument for any of the personal property in his possession or under his control. Such answer shall be verified in the manner prescribed for the verification of other pleadings.

§14. Discharge of Person Suggested by Payment of Money or Delivery of Property.—A person suggested may, at any time before the return day of the summons mentioned in section ten of this article, deliver the property or pay the money for which he is liable, or a sufficiency thereof to satisfy the execution, and shall thereby be discharged from any further liability under the execution, and, as to the property so delivered and/or money so paid, he shall be discharged from all liability whatsoever to the judgment debtor: Provided, however, That if the obligation upon which such person is indebted to the judgment debtor is evidenced by a negotiable instrument, such obligation shall not, as to a holder in due course, be discharged by such payment: Provided further, That the right of a holder in due course, of a negotiable warehouse receipt, bill of lading, or other negotiable instrument for any property so delivered, shall not be impaired by such delivery. If any payment or delivery is made to the officer under the provisions of this section, the officer shall give a receipt for, and make a return of, what is so paid and delivered.(Code 1849, c. 188, §13; Code 1860, c. 188, §14; Code 1868, c. 141, §13; 1872-3, c. 218, §13; 1882, c. 127, §13; Code 1923, c. 141, §13.)

§15. Order for Payment by Person Suggested.—If it appear from the answer of the person suggested that, at the time the writ of fieri facias was delivered to the officer to be executed, or thereafter, and before the time of the filing of the answer, or the return day of the writ of fieri facias, whichever comes first, such person was indebted or liable to the judgment debtor, or had in his possession or under his control any personal property belonging to the judgment debtor, and that he had not, before notice of the delivery of the writ of fieri facias to the officer, paid the money or delivered the property to the judgment debtor, or upon his order, and that such debt or liability to pay such money or deliver such property was not evidenced by a negotiable instrument, the court may order him to pay the amount so due from him, and to deliver such property, or any part of such money or property, to such person as the court may designate as receiver: Provided, however, That if it shall appear from the answer of the person suggested, that his debt or liability to pay money or deliver property evidenced by a negotiable instrument, the court may order such payment or delivery, but only upon condition that the holder of such negotiable instrument shall deliver the same to the person suggested simultaneously with the payment of the money or delivery of the property: Provided further, That any person suggested holding property under a pledge or lien shall not be required deliver up such property except upon payment to him of the debt secured by the pledge or lien.(Code 1849, c. 188, §11; Code 1860, c. 188, §12; Code 1868, c. 141, §11; 1872-3, c. 218, §11; 1882, c. 127, §11; Code 1923, c. 141, §11.)

§16. Effect of Order as Judgment.—An order made against a person suggested shall have the effect of a judgment, and may be enforced in the same manner as any other judgment.(Code 1849, c. 188, §11; Code 1860, c. 188, §12; Code 1868, c. 141, §11; 1872-3, c. 218, §11; 1882, c. 127, §11; Code 1923, c. 141, §11.)

§17. Failure of Person Suggested to Answer.—If any person suggested, summoned as provided in this article, fail to answer, the court may either compel him to answer, or hear proof of the matters required by section fifteen of this article to be disclosed by such person’s answer, concerning any debt or liability due by him to, or personal property in his possession or under his control of, the judgment debtor, and make such orders in relation thereto as if what is so proved had appeared in his answer.(Code 1849, c. 188, §12; Code 1860, c. 188, §13; Code 1868, c. 141, §12; 1872-3, c. 218, §12; 1882, c. 127, §12; Code 1923, c. 141, §12.)

§18. Jury Trial in Suggestion Proceeding; Waiver of Jury; Costs.—When it is suggested by the judgment creditor in any case of suggestion that the person suggested has not fully disclosed the debts or liabilities due by him to, or personal property in his possession or under his control of, the judgment debtor, or has not delivered to the officer the property, or paid the money, for which he was liable, the court shall cause a jury to be impaneled, without any formal pleadings, to inquire as to such debts or liabilities or property, or as to such payment or delivery, unless a trial by jury be waived by the parties, and if trial by jury be waived, the court shall proceed to hear and determine the questions at issue. Whether the issues of fact be found by the court or by a jury, the court shall proceed in respect to any facts so found, in the same manner as if they had been confessed by the person suggested, but either party shall be entitled to a writ of error or an appeal as in other cases. If the verdict or decision of the court be for the person suggested, he shall have judgment for his costs against the judgment creditor, and if the judgment be against the person suggested, he shall be adjudged liable for the costs of the suggestion proceeding.(Code 1849, c. 188, §§12, 14; Code 1860, c. 188, §§13, 15; Code 1868, c. 141, §§12, 14; 1872-3, c. 218, §§12, 14; 1882, c. 127, §§12, 14; Code 1923, c. 141, §§12, 14.)

§19. Return by Officer as to Moneys Received in Suggestion Proceedings.—An officer receiving money in a suggestion proceeding shall, within thirty days after receiving it, make return thereof to the court or to the clerk’s office of the court in which the judgment is, or, if it was rendered by a justice, to the clerk of the circuit court of the justice’s county, and, for failing to do so, he shall be liable as if he had acted under an order of such court. After deducting from such money commissions allowed by law and his necessary expenses and costs, he shall within thirty days pay the net proceeds to the parties entitled thereto, and he and his sureties and their representatives shall be liable therefor in like manner as if the same had been made under a writ of fieri facias or execution.(Code 1849, c. 188, §16; Code 1860, c. 188, §17; Code 1868, c. 141, §16; 1872-3, c. 218, §16; 1882, c. 127, §16; Code 1923, c. 141, §16.)

§20. Suit for Recovery of Property Subject to Lien.—For the recovery of any personal property or any claim on which a writ of fieri facias or an execution is a lien under this article, or the enforcement of any liability in respect to any such property, or for the enforcement of any debt or liability of any person to the judgment debtor, on which the writ of fieri facias or execution is a lien, a suit may be maintained by the judgment creditor either at law or in equity, as the case may require. If such suit be at law, it may be brought in the name of the judgment debtor, for the use and benefit of the judgment creditor to the extent of his lien. If such suit be in equity, it may be brought in the name of the judgment creditor. Such suit may be brought by the judgment creditor instead of a proceeding in suggestion, or, after a proceeding in suggestion has been begun, the judgment creditor may, at any time before an order for payment or delivery has been made against the person suggested, dismiss such proceeding in suggestion at his own costs, and commence a suit under this section. If a recovery is had in such suit at law, the costs shall be assessed against the defendant in such suit. If no recovery be had, the costs shall be assessed against the judgment creditor. If the suit be in equity, the costs may be assessed as in other suits in, equity. Any fact which would constitute a defense to a person suggested under the provisions of this article shall be a defense to any person sued under this section.(Code 1849, c. 188, §15; Code 1860, c. 188, §16; Code 1868, c. 141, §15; 1872-3, c. 218, §15; 1882, c. 127, §15; Code 1923, c. 141, §15.)

§21. Form of Judgment for Money in Suit to Enforce Execution; Receipt.—The judgment or decree for money recovered in any suit brought under the provisions of the preceding section shall be in favor of the judgment creditor to the amount of his lien and any costs and charges which he may be entitled to recover, and, as to the residue, shall be in favor of the judgment debtor or such other person as may be entitled thereto, and shall show the amount to which each person is entitled thereunder. The judgment creditor shall, within ten days after the receipt of any money under such judgment or decree, execute and file with the clerk from whose court the fieri facias or execution issued, a receipt for such money which shall be credited by such clerk upon a such fieri facias or execution and noted in his execution book.

§22. Disposition of Leviable Property Recovered in Suit.—If property which is capable to of being levied on under an execution is recovered in any suit brought under the provisions of section twenty of this article or in any proceeding in garnishment, it shall be subject to the lien of the execution under which the suit to recover such property was brought, and may be sold under that or a subsequent execution in the same manner as other property belonging to the judgment debtor.

§23. Additional Executions.—Although a judgment creditor avail himself of the proceeding in suggestion, or of the proceeding provided by sections one and twenty of this article, he may nevertheless, without impairing his lien under such proceedings, from time to time, subject to the limitations prescribed by law, issue other executions upon his judgment until the same be satisfied.(Code 1849, c. 188, §17; Code 1860, c. 188, §18; Code 1868, c. 141, §17; 1872-3, c. 218, §17; 1882, c. 127, §17; Code 1923, c. 141, §17.)

§1. Bond to Indemnify Officer Making Levy.—If any officer levy or is required to levy an execution or a warrant of distress on property, and a doubt shall arise whether such property is liable to such levy, he may give to the plaintiff, his agent, or attorney at law, notice that an indemnifying bond is required in the case. Bond may thereupon be given by any person, with good security, payable to the officer, in a penalty equal to double the value of the property, conditioned to indemnify him against all damages which he may sustain in consequence of the seizure or sale of such property, and to pay to any claimant of such property all damages which he may sustain in consequence of such seizure or sale.(Code 1849, c. 152, §4; Code 1860, c. 152, §4; Code 1868, c. 107, §4; 1882, c. 72, §2; Code 1923, c. 107, §2.)

§2. Effect of Giving, or of Refusal to Give, Bond.—If such bond be not given within a reasonable time after such notice, the officer may refuse to levy on such property, or may, if he has already levied, restore it to the person from whose possession it was taken, as the case maybe. If, where there has been no levy, the bond be given within a reasonable time, or, after a levy, the bond be given before the property is restored, it shall be returned within twenty days to the clerk’s office of the circuit court of the county in which such property may be, and the claimant or purchaser of such property shall, after such bond is so returned, be barred of any action against the officer levying thereon, provided the security therein be good at the time of taking it. After such bond has been given as herein provided, the officer shall proceed to levy, if he has not already done so, or, if the levy has been released, he shall proceed to levy again.(Code 1849, c. 152, §5; Code 1860, c. 152, §5; Code 1868, c. 107, §5; 1882, c. 72, §3; Code 1923, c. 107, §3.)

§3. Suspending Bond; Claimant’s Title Settled.—But the sale of any such property shall be suspended at the instance of any claimant thereof, who shall deliver to the officer bond with good security in a penalty equal to double the value thereof, payable to such officer, conditioned to pay to all persons who may be injured by suspending the sale thereof, until the claim thereto an be adjusted, such damages as they may sustain by such suspension. If the property claimed to be liable by virtue of the process aforesaid is in the possession of any of the parties against whom such process was issued, but is claimed by any other person or persons, the officer having such process in his hands to he executed shall, whether an indemnifying bond has been given or not, after notice to the claimant, or his agent, proceed to execute the same notwithstanding such claim, unless the claimant of such property, or some one for him, shall give the suspending bond aforesaid, and shall, within, thirty days after such bond is given, proceed to have the title to such property settled in accordance with the provisions of this article. And in case such claimant or some one for him fails to give such bond, or having given such bond fails to have such proceedings instituted as aforesaid, to settle the title thereto, such property shall be conclusively presumed to be the property of the party in possession. For the purposes of this section, a person making a claim of ownership of property on behalf of another shall be deemed to be the latter’s agent, and the notice required by this section may be verbal or in writing. Upon any such bond as is mentioned in this or the two preceding sections, suit may be prosecuted in the name of the officer, for the benefit of the claimant, creditor, purchaser or other person injured, and such damages recovered in such suit as a jury may assess. The same may be prosecuted, and execution had, in the name of such officer, when he is dead, in like manner as if he were alive.(Code 1849, c. 152, §6; Code 1860, c. 152, §6; Code 1868, c. 107, §6; 1882, c. 72, §4; Code 1923, c. 107, §4.)

§4. Procedure for Determination of Conflicting Claims to Property Levied on.—When property of the value of more than fifty dollars is taken under a warrant of distress, or when property of any value is taken under an execution issued by the clerk of a court, and any person, other than the party against whom the process issued, claims such property, or the proceeds or value thereof, the circuit court of the county in which the property is taken, or the judge thereof in vacation, upon the application of the officer, where no indemnifying bond has been given, or if one has been given, on the application of the person who claims such property and has given such suspending bond as is mentioned in the next preceding section, may cause to appear before such court, as well the party issuing such process, as the party making such claim; and such court may exercise, for the decision of their rights, all or any of the powers and authority prescribed in section one, article ten, chapter fifty-six of this Code. Such court on the application of the party issuing such process may cause to appear before it the party making such claim, and may exercise the like power and authority.(Code 1849, c, 152, §2; Code 1860, c. 152, §§2, 3; Code 1868, c. 107; §§2, 3; 1882, c. 72, §§5, 6; Code 1923, c. 107, §§5, 6.)

§5. Order of Sale.—In such case as is mentioned in the preceding section, the court, or the judge thereof in vacation, where no bond is given for the forthcoming of the property, may, before a decision of the rights of the parties, make an order for the sale of the property or any part thereof, on such terms as the court or judge may deem advisable, and for the proper application of the proceeds according to such rights.(Code 1849, c. 152, §3; Code 1860, c. 152, §3; Code 1868, c. 107, §3; 1882, c. 72, §6; Code 1923, c. 107, §6.)

§6. Disposition of Surplus Proceeds.—When property, the sale of which is indemnified, sells for more than enough to satisfy the execution or distress warrant under which it is taken, the surplus shall be paid by the officer into the court to the office whereof the indemnifying bond is required to be returned, or as such court may direct. Such court may make such order for the disposition thereof, either temporarily until the question as to the title of the property sold is determined, or absolutely, as in respect to the rights of those interested may seem to it proper.(Code 1849, c. 152, §7; Code 1860, c. 152, §8; Code 1868, c. 107, §8; 1882, c. 72, §8; Code 1923, c. 107, §8.)

§7. Forthcoming Bonds.—The sheriff or other officer levying a writ of fieri facias or distress warrant on property of the debtor, or on property the sale of which is suspended at the instance of a claimant thereof, may take from such debtor, or from such claimant, as the case may be, if such claimant desires the property to remain in such possession as it was in immediately before the levy, and the case be one in which a bond for the forthcoming of the property is not prohibited by section fourteen of this article, a bond with sufficient security, payable to the creditor, in a penalty not more than double the value of the property levied upon as ascertained and fixed by such officer, reciting the service of such writ or warrant, describing the property, specifying its true value, with the condition that the property be forthcoming at the day and place of sale then or thereafter to be appointed. Whereupon such property shall, except as provided in the following section, be permitted to remain in the possession of the debtor or in such possession as it was in immediately before the levy, as the case may be, and in either case at the risk of such debtor or claimant.(Code 1849, c. 189, §1; Code 1860, c. 152, §7, c. 189, §1; Code 1868, c. 107, §7, c. 142, §1; 1872-3, c. 101, §1; 1882, c. 72, §7, c. 66, §1; Code 1923, c. 107, §7, c. 142, §1.)

§8. Sale of Perishable Property, or Property Expensive to Keep.—Notwithstanding such forthcoming bond as is mentioned in the preceding section be given, if such property be expensive to keep or perishable, the court in which proceedings in the case under section four of this article are pending or may be had, or the judge thereof in vacation, may, before a decision of the rights of the parties under such proceedings, on the application of such claimant or of the surety in such suspending or forthcoming bond, after reasonable notice of the intended application has been given by such claimant or the surety to the other parties in the case, order a sale of the property, or any part thereof, on such terms as the court or judge may deem advisable; and the court shall apply the proceeds according to such rights when determined.

§9. Levy on Property Not Mentioned in Forthcoming Bond.—If the property levied upon as aforesaid be not sufficient to pay the plaintiff’s debt, interest and costs, and the fees and commissions of the officer, the execution or warrant, while in force, may be levied upon other property, if any be found, or a new execution may be sued out, upon the return of the former, for the residue of the debt, interest and costs. But such execution shall not be levied upon the property mentioned in the forthcoming bond, without the consent of the persons liable therein.(1882, c. 66, §2; Code 1923, c. 142, §2.)

§10. Enforcement of Forthcoming Bond.—If the property, or any of it, mentioned in the forthcoming bond be not delivered as therein provided, the officer, unless payment be made of the amount due on the execution or warrant, including his fees and commissions, shall forthwith return such bond to the clerk’s office from which the execution issued, or if it be a distress warrant, to the clerk’s office of the circuit court of the county in which such warrant was issued. The clerk shall indorse on the bond the date of its return; and, against such of the persons who signed the same as may be alive when it is so returned, it shall have the force of a judgment. But no execution shall issue thereon under this section.(Code 1849, c. 189, §2; Code 1860, c. 189, §2; Code 1868, c. 142, §3; 1872-3, c. 101, §2; 1882, c. 66, §3; Code 1923, c. 142, §3.)

§11. Action or Motion on Bond; Enforcement of Original Judgment.—The person signing such forfeited forthcoming bond shall be liable for the true value of the property therein mentioned, and not delivered as aforesaid, with interest on such value from the date of the bond, and costs incurred in proceedings upon the bond. And the obligee in such bond, or his assignee or personal representative, may recover such sum and interest, or so much thereof as may be necessary to satisfy his demand against the defendant in the execution or warrant with costs, by action or motion against the persons signing such bond. And in case such obligee fail for any cause to recover a judgment on such bond, or to collect the amount specified in any such judgment, or any part thereof, he may proceed against the defendant in the original judgment for the amount remaining unpaid, in the same manner as if such bond had not been given.(Code 1849, c. 189, §3; Code 1860, c. 189, §3; Code 1868, c. 142, §4; 1869, c. 131, §11; 1872-3, c. 101, §3; 1882, c. 66, §4; Code 1923, c. 142, §4.)

§12. Defenses to Bond Taken Under Distress Warrant.—In an action or motion on such bond, when it is taken under a distress warrant, the defendants may make defense on the ground that the distress was for rent not due in whole or in part, or was otherwise illegal.(Code 1848, c. 189, §4; Code 1860, c. 189, §4; Code 1868, c. 142, §4; 1872-3, c. 101, §4; 1875, c. 20; 1882, c. 66, §5; Code 1923, c. 142, §5.)

§13. Remedies on Quashing of Bond.—If any such forthcoming bond be at any time quashed, the obligee, besides his remedy against the officer, may have such execution on his judgment or issue such distress warrant as would have been lawful if such bond had not been taken.(Code 1849, c. 189, §5; Code 1860, c. 189, §5; Code 1868, c. 142, §6; 1872-3, c. 101, §5; 1882, c. 66, §6; Code 1923, c. 142, §6.)

§14. Forthcoming Bond Forbidden in Certain Cases.—No bond for the delivery of property shall be taken on an execution on a forthcoming bond, nor on an execution on a judgment against a sheriff or other officer, or a deputy of such sheriff, for money received by any such officer or deputy, by virtue of his office, or against any such officer or his personal representative, in favor of a surety of such officer, or against such deputy of any such officer or his surety or personal representative, in favor of his principal the personal representative of such principal, for money paid or a judgment rendered for a default in office; nor on an execution against an overseer of the poor, or his personal representative, or a justice or constable for money received by him as such, nor on any other execution on which the clerk is required by law to indorse that no forthcoming bond is to be taken.(Code 1849, c. 189, §6; Code 1860, c. 189, §6; Code 1868, c. 142, §7; 1872-3, c. 101, §6; 1882, c. 66, §7; Code 1923, c. 142, §7.)

§15. Indorsement Forbidding Forthcoming Bond.—On every execution on which such bond is prohibited from being given, the indorsement ‘‘no forthcoming bond is to be taken” shall be made by the clerk.(Code 1849, c. 189, §7; Code 1860, c. 189, §7; Code 1868, c. 142, §8; 1872-3, c. 101, §7; 1882, c. 66, §8; Code 1923, c. 142, §8.)

§16. Costs.—In any case mentioned in this article, the court may make all such rules and orders and enter such judgment as to costs and all other matters, as may be just and proper.(Code 1849, c. 152, §3; Code 1860, c. 152, §3; Code 1868, c. 107, §3; 1882, c. 72, §6; Code 1923, c. 107, §6.)

§1. Filing of Affidavit.—In any action or proceeding at law or suit in equity for the recovery of any claim or debt arising out of contract, or to recover damages for any wrong, the plaintiff, at the commencement of the action, proceeding or suit, or at any time thereafter and before judgment, may have an order of attachment against the property of the defendant, on filing with the clerk of the court in which such action, proceeding or suit is about to be or is brought, his own affidavit or that of some credible person, stating the nature of the plaintiff’s claim and the amount, at the least, which the affiant believes the plaintiff is justly entitled to recover in the action, proceeding or suit, and also that the affiant believes that some one or more of the grounds mentioned in the next following section of this article exist for such attachment.(Code 1849, c. 151, §§1-5, 11; Code 1860, c. 151, §§1-5, 11; 1863, c. 45; 1867, c. 118; Code 1868, c. 106, §1; 1882, c. 158, §1; 1885, c. 38; 1887, c. 34; Code 1923, c. 106, §1.)

§2. Grounds of Attachment.—The grounds upon which an order of attachment may issue, under the preceding section, are the following: (a) That the defendant, or one of the defendants, is a foreign corporation or is a nonresident of this State; or (b) has left, or is about to leave the State, with intent to defraud his creditors; or (c) so conceals himself that a summons cannot be served upon him; or (d) is removing or is about to remove, his property, or the proceeds of the sale of his property, or a material part of such property or proceeds, out of this State, so that process of execution on a judgment or decree in such action or suit, when it is obtained, will be unavailing; or (e) is converting, or is about to convert, his property, or a material part thereof, into money or securities, with intent to defraud his creditors; or (f) has assigned or disposed of his property or a material part thereof, or is about to do so, with intent to defraud his creditors; or (g) has property or rights in action, which he conceals; or (h) fraudulently contracted the debt or incurred the liability for which the action or suit is about to be or is brought.(Code 1849, c. 151, §§1-5; Code 1860, c. 151; 1863, c. 45; 1867, c. 118; Code 1868, c. 106, §1; 1882, c. 158, §1; 1885, c. 38; 1887, c. 34; Code 1923, c. 106, §1.)

§3. Further Contents of Affidavit.—Unless the attachment is sued out upon the first of the grounds mentioned in the preceding section, the affiant shall also state in his affidavit the material facts relied upon by him to show the existence of the grounds upon which his application for the attachment is based.(1867, c. 118; Code 1868, c. 106, §1; 1882, c. 158, §1; 1885, c. 38; 1887, c. 34; Code 1923, c. 106, §1.)

§4. Form of Order of Attachment.—The order of attachment shall be issued by the clerk, and may be in form or effect as follows:

(1867, c. 118; Code 1868, c. 106, §1; 1869, c. 131, §8; 1882, c. 158, §1; 1885, c. 38; 1887, c. 34; Code 1923, c. 106, §1.)

§5. Attachment for Claim Not Due.—An attachment may be sued out in a court of equity for a debt or claim, legal or equitable, whether the same be due or not, upon any of the grounds mentioned in section two of this article, but the affidavit, in case the claim or debt be not due, must show when it will become due: Provided, however, That an attachment shall not be sued out against a foreign corporation for a debt not due, upon the ground alone that it is a foreign corporation, nor against a nonresident defendant for a debt not due, upon the ground alone that he is a nonresident, unless the affiant shows by his affidavit that such defendant was a resident of this State when the debt was contracted, and that the plaintiff believed he would remain a resident of this State at the time he gave the defendant credit.(Code 1849, c. 151, §§3, 11; Code 1860, c. 151, §§3, 11; 1867, c. 118; 1871, c. 136, §1; 1882, c. 158, §1; 1885, c. 38; 1887, c. 34; Code 1923, c. 106, §1.)

§6. Amendment of Affidavit.—The affidavit required by the first section of this article may be amended at any time before trial by the substitution of a new affidavit, complying with the requirements of the statute and containing allegations of facts existing at the time of making the former affidavit; and the new affidavit shall stand in lieu of the old one for all purposes.

§7. What Property May be Attached.—Every attachment issued under the provisions of this article may be levied upon any estate, real or personal, of the defendant named therein, or so much thereof as is sufficient to pay the amount for which it issues.(Code 1849, c. 151, §7; Code 1860, c. 151, §7; Code 1868, c. 106, §5; 1882, c. 158, §5; Code 1923, c. 106, §5.)

§8. Taking Possession of Personal Property; Plaintiff’s Bond.—If the plaintiff shall, at the time of suing out an attachment, or afterwards, give bond with good security, approved by the clerk issuing the attachment, in a penalty of at least double the amount of the claim sworn to, with condition to pay all costs and damages which may be awarded against him or sustained by any officer or other person by reason of the suing out of the attachment or levying the same, and to pay, to any claimant of any property seized or sold under or by virtue of such attachment, all damages which he may sustain in consequence of such seizure or sale, such officer shall take possession of the personal property levied upon by virtue of such an attachment.(Code 1849, c. 151, §8; Code 1860, c. 151, §8; Code 1868, c. 106, §6; 1871, c. 136, §2; 1882, c. 158, §6; 1901, c. 74; Code 1923, c. 106, §6.)

§9. Liability of Officer Where Bond Given.—If the bond mentioned in the preceding section of this article be given, no action shall be maintained against the officer levying an attachment upon property or effects not belonging to the debtor, unless it shall appear that such wrongful levy was wilfully and knowingly made.(1871, c. 136, §6; 1882, c. 158; 1901, c. 74; Code 1923, c. 106, §6.)

§10. Execution of Bond After Suit Commenced.—If the plaintiff has sued out an order of attachment without giving the bond mentioned in section eight of this article, and afterwards gives the same as aforesaid, it shall be the duty of the clerk, whether the attachment has been levied or not, to certify the fact that such bond has been given to the officer who levied the same, or in whose hands it was to be levied, or if he be absent or out of office, to issue a new order of attachment and to place the same in the hands of some other proper officer; and it shall be the duty of any such officer to take the attached personal property into his possession and make return of such order in like manner as if such bond had been given before the issuing of the original attachment.(1882, c. 158; 1901, c. 74; Code 1923, c. 106, §6.)

§11. Exceptions to Bond.—The defendant may except to the bond, or to the sufficiency of the security therein, and, if the exceptions be sustained by the court, the attached property shall be returned to the defendant, unless the plaintiff shall, within such time as the court shall direct, give a proper bond, with sufficient security, to be approved by the court.(Code 1849, c. 151, §14; Code 1860, c. 151, §14; Code 1868, c. 106, §11; 1882, c. 158, §6; 1901, c. 74; Code 1923, c. 106, §6.)

§12. Form of Order to Take Property Into Possession.—If the plaintiff at the time of suing out his attachment, or afterwards before judgment, give the bond and security required by section eight of this article, such order may be in form or effect as follows:

(Code 1868, c. 106, §2; 1869, c. 131, §8; 1882, c. 158, §2; Code 1923, c. 106, §2.)

§13. To What Officer Order May be Directed.—An order of attachment under sections four and twelve of this article may be issued and directed to the sheriff or a constable in any county of this State; and several such orders may be issued and delivered to different officers at the same or different times, at the suit of the same or different persons.(Code 1849, c. 151, §6; Code 1860, c. 151, §6; Code 1868, c. 106, §2; 1882, c. 158, §2; Code 1923, c. 106, §2.)

§14. Execution and Return of Attachment; Penalty for Failure.—The officer to whom any attachment issued under this article shall be delivered for execution shall execute and return the same as therein required, and, if he fail to do so, he and his sureties in his official bond shall be liable to the plaintiff in the case for all damages he may sustain by reason of such failure.(Code 1868, c. 106, §4; 1882, c. 158, §4; Code 1923, c. 106, §4.)

§15. Garnishment.—The plaintiff in an attachment may, by an endorsement on the order of attachment, designate any person as being indebted or liable to, or having in his possession, the effects of the defendant, or one of the defendants; and in such case the clerk shall make as many copies of the order as there are persons so designated, with an indorsement thereon that the person so designated is required to answer at the next term of the court in which the action or suit is pending, and disclose on oath in what sum he is indebted to the defendant, and what effects of the defendant he has in his possession or under his control; and it shall be sufficiently levied on such person by delivering to him a copy of the order and indorsement, or by a service thereof upon him in the same manner as a notice may by law be served, or by publication as provided in article three, chapter fifty-six of this Code.(Code 1849, c. 151, §9; Code 1860, c. 151, §9; Code 1868, c. 106, §5; 1882, c. 158, §5; Code 1923, c. 106, §5.)

§16. Levy of Attachment Upon Real Estate.—An attachment may be sufficiently levied upon real estate by an indorsement on the order of attachment, or upon a paper annexed thereto, stating the quantity, or the supposed quantity, and the location of the real estate attached.(Code 1849, c. 151, §7; Code 1860, c. 151, §7; Code 1868, c. 106, §5; 1882, c. 158, §5; Code 1923, c. 106, §5.)

§17. Officer’s Return.—The officer serving the attachment shall make a return of the time and manner of service on each person designated as being indebted to, or having in his possession or under his control the property of, any such defendant; and shall also return a list and description of the property if any, levied upon or levied upon and seized under such attachment, and of the date of the service, or execution thereof, on each person and parcel of property. Such return shall show, as to any personal property levied upon, whether such personal property was merely levied upon, or was both levied upon and seized.(Code 1849, c. 151, §9; Code 1860, c. 151, §9; Code 1868, c. 106, §7; 1882, c. 158, §7; Code 1923, c. 106, §7.)

§18. Attachment on Sunday.—An attachment may be issued or executed on Sunday or on any holiday, if oath be made that the defendant is actually removing his effects on that day.(Code 1849, c. 151, §10; Code 1860, c. 151, §10; Code 1868, c. 106, §8; 1882, c. 158, §8; Code 1923, c. 106, §8.)

§19. Lien of Attachment.—The plaintiff shall have a lien upon any personal property, choses in action and other securities of the defendant, from the time of the levy of such attachment, but such lien may be defeated by a sale, pledge, or other transfer of such property, choses in action, or other securities, before seizure, if such property, choses in action, or other securities are subject to levy and sale under an execution, to a purchaser for value without notice, who advances money or other value at the time of such transfer, in reliance upon the defendant’s title to the property: Provided, however, That in the case of a pledge or other transfer of the property other than a complete sale, the lien of the attachment shall bind any equity or other interest in the property, remaining in the defendant. The plaintiff shall have a lien upon the claim or right which the defendant has against any garnishee for any debt or liability owed by such garnishee to the defendant, or any personal property in the possession or under the control of the garnishee, belonging to the defendant, from the time of the service of the attachment upon such garnishee, or the delivery to him of a copy of the order and indorsement, as provided in section fifteen of this article: Provided, however, That if such chose in action or obligation be evidenced by a negotiable instrument, and such instrument be negotiated after the service on, or notice to, the garnishee, to a holder in due course, so that the garnishee becomes obligated to pay the money or deliver the property to such holder, the lien of the attachment thereon shall, to the extent of such obligation to such holder, be discharged. The plaintiff shall have a lien upon any real estate of the defendant levied upon under an attachment, from the time of the suing out of the attachment, but such lien may be defeated by a sale of such real estate to a purchaser for value without notice before the filing, by the plaintiff, of a notice, of lis pendens under the provisions of article eleven, chapter fifty-five of this Code.(Code 1849, c. 151, §12; Code 1860, c. 151, §12; Code 1868, c. 106, §9; 1882, c. 158, §9; Code 1923, c. 106, §9.)

§20. Retention of Property or Release of Attachment on Bond Taken by Officer.—Any property seized under any attachment, where the plaintiff has given bond, may be retained by, or returned to, the person in whose possession it was, on his giving bond, with condition to have the same forthcoming at such time and place as the court may require; or the defendant in any attachment may release from the attachment the whole of the estate attached, by giving bond, with condition to perform the judgment or decree of the court. The bond, in either case, shall be taken by the officer serving the attachment, with security, payable to the plaintiff, and in a penalty, in the latter case, of at least the amount of the claim for which the attachment issued, with the costs, and in the former, either of the amount of the claim for which the attachment issued, with the costs, or of the value of the property retained or returned, at the option of the person giving it.(Code 1849, c. 151, §13; Code 1860, c. 151, §13; Code 1868, c. 106, §10; 1882, c. 158, §10; Code 1923, c. 106, §10.)

§21. Sufficiency of Bond for Retention of Property; Exceptions.—Every bond given under the provisions of the preceding section of this article shall be returned by the officer to, and filed by, the clerk of the court in which the suit is pending, or to which the attachment is returnable; and the plaintiff may, within thirty days after the return thereof, file exceptions to the same, or to the sufficiency of the security therein. If such exceptions be sustained, the court shall rule such officer to file a good bond, with sufficient security, to be approved by it, on or before a certain day to be fixed by the court. If he, fail to do so, he and his sureties in his official bond shall be liable to the plaintiff as for a breach of such official bond. But the officer shall have the same rights and remedies against the parties to any bond so adjudged bad, as if he were a surety for them.(Code 1849, c. 151, §14; Code 1860, c. 151, §14; Code 1868, c. 106, §11; 1882, c. 158, §11; Code 1923, c. 106, §11.)

§22. Interest and Profits Pending Suit; Discharge of Attachment on Bond.—When any at in attachment is sued out, either at law or in equity, except against a nonresident, on such an affidavit as is mentioned in the first section of this article, and the property is seized and retained by the officer, the interest and profits thereof, pending the suit and before judgment or decree, may be paid to the defendant, if the court deem it proper; and at any time during such period the court, or in vacation the judge thereof, may discharge the attachment, as to the whole of the estate of the defendant, on his giving bond, with security, payable to the plaintiff in a penalty of the value of such estate with costs, with condition, if judgment or decree be rendered for the he plaintiff in such suit, to pay such value, or so much thereof as may be necessary to satisfy the at same.(Code 1849, c. 151, §15; Code 1860, c. 151, §15; Code 1868, c. 106, §12; 1882, c. 158, §12; Code 1923, c. 106, §12.)

§23. Custody of Attached Property; Sale of Perishable Property; Terms.—Property seized under an attachment, and retained by the officer, shall be kept in the same manner as similar property taken under execution. But perishable property, or property which is expensive to keep, may be sold by order of the court, or in vacation, by order of the judge, such sale to be made in the same manner and upon the same terms as if it were a sale under an execution, issuing from a court other than a justice court.(Code 1849, c. 151, §16; Code 1860, c. 151, §16; Code 1868, c. 106, §13; 1882, c. 158, §13; Code 1923, c. 106, §13.)

§24. Answer of Garnishee.—Any person served with the writ and indorsement thereon, provided for in section fifteen of this article, in any action or proceeding at law, or suit in equity, shall, on or before the return day thereof, or within such additional time as may be granted by the court, answer in writing disclosing the matters required by the indorsement on such writ. The answer shall state whether the liability of the garnishee, or any part thereof, is represented by a negotiable instrument; and in the case of a bailee, whether there is outstanding any negotiable warehouse receipt, bill of lading or other negotiable instrument for any of the personal property in his possession or under his control. Such answer shall be verified in the manner prescribed for the verification of other pleadings.(Code 1849, c. 151, §17; Code 1860, c. 151, §17; Code 1868, c. 106, §14; 1882, c. 158, §14; Code 1923, c. 106, §14.)

§25. Discharge of Garnishee by Payment of Money or Delivery of Property.—A garnishee may at any time before the return day of the order mentioned in section fifteen of this article, deliver the property or pay the money for which he is liable, or a sufficiency thereof to satisfy the attachment, to the officer having the order of attachment, and shall thereby be discharged from any further liability under the attachment, and as to the property so delivered and/or money so paid, he shall be discharged from all liability whatsoever to the defendant: Provided, however, That if the obligation upon which the garnishee is indebted to the defendant is evidenced by a negotiable instrument, such obligation shall not, as to a holder in due course, be discharged by such payment: Provided further, That the right of a holder in due course of a negotiable warehouse receipt, bill of lading, or other negotiable instrument for any property so delivered, shall not be impaired by such delivery.

§26. Order for Payment or Delivery; Forthcoming Bond.—If it appear from the answer of the garnishee that at or after the service of the attachment the garnishee was indebted or liable to the defendant against whom the claim is, or had in his possession or control any personal property belonging to such defendant and that such debt or obligation to pay such money or deliver such property was not evidenced by a negotiable instrument, the court may order him to pay the amount so due from him, and to deliver such property or any part thereof, to such person as it may appoint as receiver; or such garnishee, with leave of the court, may give bond, with sufficient security, payable to such person and in such penalty as the court may prescribe, with condition to pay the amount due by him and/or have such effects forthcoming at such time and place as the court may thereafter require: Provided, however, That if it shall appear from the answer of the garnishee, that his debt or liability to pay money or deliver property is evidenced by a negotiable instrument, the court may order such payment or delivery, but only upon condition that the holder of such negotiable instrument shall deliver the same to the garnishee simultaneously with the payment of the money or delivery of the property: Provided further, That any garnishee holding property under a pledge or lien shall not be required to deliver up such property except upon payment to him of the debt secured by the pledge or lien.(Code 1849, c. 151, §17; Code 1860, c. 151, §17; Code 1868, c. 106, §14; 1882, c. 158, §14; Code 1923, c. 106, §14.)

§27. Failure of Garnishee to Answer.—If any garnishee, summoned as provided in this article, fail to answer, the court may either compel him to answer, or hear proof of the matters required by section twenty-four of this article to be disclosed by the garnishee’s answer, concerning any debt or liability due by him to, or personal property in his possession or under his control of, the defendant in such attachment, and make such orders in relation thereto as if what is so proved had appeared in his answer.(Code 1849, c. 151, §18; Code 1860, c. 151, §18; Code 1868, c. 106, §15; 1882, c. 158; §15; Code 1923, c. 106, §15.)

§28. Jury Trial in Garnishment Case.—When it is suggested by the plaintiff in any attachment at law or in equity that the garnishee has not fully disclosed the debts or liabilities due by him to, or personal property in his possession or under his control of, the defendant in such attachment, or has not delivered to the officer the property, or paid the money, for which he was liable, the court shall cause a jury to be impaneled, without any formal pleadings, to inquire as to such debts or liabilities or property, or as to such payment or delivery, unless a trial by jury be waived by the parties, and if trial by a jury be waived, the court shall proceed to hear and determine the questions at issue. Whether the issues of fact be found by the court or by a jury, the court shall proceed in respect to any facts so found, in the same manner as if they had been confessed by the garnishee, but either party shall be entitled to a writ of error or an appeal as in other cases. If the verdict or decision of the court be for the garnishee, he shall have judgment for his costs against the plaintiff, and if the judgment be against the garnishee, he shall be adjudged liable for the costs of the garnishment proceeding.(Code 1849, c. 151, §19; Code 1860, c. 151, §19; Code 1868, c. 106, §16; 1882, c. 158, §16; Code 1923, c. 106, §16.)

§29. Effect of Order as Judgment.—An order made against a garnishee shall have the effect of a judgment, and may be enforced in the same manner as any other judgment.

§30. Service of Process.—In any proceeding under this article process commencing the action shall be served upon the attachment debtor, and may be served in any manner provided in article three, chapter fifty-six of this Code for serving process commencing a suit.(Code 1849, c. 151, §20; Code 1860, c. 151, §20; Code 1868, c. 106, §17; 1882, c. 158, §17; Code 1923, c. 106, §17.)

§31. Who May Defend Against Attachment.—A defendant, any person entitled to file a petition under the provisions of section forty-one of this article, any party to any bond given under section twenty of this article, any officer who may be liable to the plaintiff by reason of any such bond being adjudged bad, or any other person whose rights are affected by the attachment, shall have the right, either jointly or separately, to defend against any attachment, and to the benefit of all available defenses thereto: Provided, That a judgment in favor of any party to a bond, or in favor of an officer who may be liable by reason of such bond being adjudged bad, shall not discharge the lien of the attachment on any property.(Code 1849, c. 151, §21; Code 1860, c. 151, §21; Code 1868, c. 106, §18; 1882, c. 158, §18; Code 1923, c. 106, §18.)

§32. Quashing of Attachment for Insufficiency of Affidavit.—The right to sue out an attachment may be contested, and when the court is of opinion that the facts stated in the affidavit or amended affidavit were not sufficient to authorize the issuing thereof, or that the affidavit is otherwise insufficient, judgment shall be entered that the attachment be quashed.(Code 1849, c. 151, §22; Code 1860, c. 151, §22; Code 1868, c. 106, §19; 1882, c. 158, §19; Code 1923, c. 106, §19.)

§33. Denial of Grounds of Attachment; Trial.—Any person entitled to defend in any attachment proceeding may controvert the existence of the grounds of the attachment and of the facts relied upon to show the existence of such grounds, as such grounds and facts are stated in the affidavit, or in any amendment thereto, and may file an answer in writing denying the existence of such grounds and facts in any proceeding at law or in equity, such answer to be verified as any other pleading. The issue on such answer shall be tried by a jury, unless trial by jury be waived by the parties. The affirmative of such issue shall be with the plaintiff to prove the existence of such grounds and facts, sufficient to sustain the attachment, and, if the verdict be for the defendant, judgment shall be entered abating and discharging the attachment, and awarding to the defendant his costs, and ordering the restoration to him of the attached property. The court may grant new trials as in other cases, and either party may have the judgment reviewed upon a writ of error or appeal as the case may be, as in other actions.(Code 1849, c. 151, §22; Code 1860, c. 151, §22; Code 1868, c. 106, §19; 1882, c. 158, §19; Code 1923, c. 106, §19.)

§34. Trial on Merits.—When the attachment is properly sued out, and the case heard upon its merits, if it be determined that the claim of the plaintiff is not established, final judgment shall be given for the defendant and his costs shall be awarded to him, and an order shall be made for the restoration to him of the attached property.(Code 1849, c. 151, §22; Code 1860, c. 151, §22; Code 1868, c. 106, §19; 1882, c. 158, §19; Code 1923, c. 106, §19.)

§35. Damages for Unlawful Attachment.—If, upon any trial had under the provisions of sections thirty-three or thirty-four of this article, it be found either by the court, or by the jury, if one be impaneled, that the defense is well founded, judgment may be entered for the defendant against the plaintiff for the damages sustained by the defendant by reason of the attachment.(Code 1849, c. 151, §30; Code 1860, c. 151, §30; Code 1868, c. 106, §34; 1882, c. 158, §27; Code 1923, c. 106, §27.)

§36. Order of Sale.—If the claim of the plaintiff in any suit or proceeding under this article be established, judgment or decree shall be rendered for him, and the court shall order the sale of all real or personal property levied upon under and by virtue of any such attachment, which shall not have been previously sold, including any property embraced in any forthcoming bond, but not including any property restored to the defendant upon his giving bond to perform the judgment or decree of the court, and direct the proceeds of the sale of such property, and any funds derived from property previously sold, to be applied in satisfaction of such judgment or decree. But no real estate shall be sold under such order until all other property and money, so levied on as aforesaid, has been exhausted, and then only so much thereof as is necessary to pay the judgment or decree.(Code 1849, c. 151, §23; Code 1860, c. 151, §23; 1865, c. 29, §23; Code 1868, c. 106, §20; 1882, c. 158, §20; Code 1923, c. 106, §20.)

§37. Sale of Attached Land; Conveyance.—When a sale of real estate is ordered under the provisions of the preceding section, the court shall prescribe in the order the terms of such sale and the officer or person by whom it shall be made. The officer or person making such sale of real estate shall report, to the court which ordered the sale, the real estate so sold by him, with the name of the purchaser, the sum for which it sold, and the time and place of such sale. The court, for good cause, may refuse to confirm the sale, and order the property to be resold, but if good cause for setting the sale aside be not shown, the court shall confirm the same, and shall direct a deed of conveyance of the real estate so sold to be made to the purchaser thereof, by the officer or person who sold the same, or by a special commissioner, appointed for that purpose, whenever the purchase money thereof, with its interest, shall have been fully paid.(1865, c. 29, §23; Code 1868, c. 106, §21; 1882, c. 158, §21; Code 1923, c. 106, §21.)

§38. Conveyance by Former Officer or by Special Commissioner.—An officer directed by the court to make a conveyance, under the preceding section, may make the same in his official character, notwithstanding his term of office shall have expired. And in case of the death, removal, inability, or refusal to act of the officer or person appointed to make any such sale or conveyance, before the same is made, the circuit court of the county, in which such judgment, decree or order was rendered or made, may appoint a special commissioner to make such sale or conveyance, or both, as required by such judgment, decree or order.(1865, c. 29, §23; Code 1868, c. 106, §21; 1882, c. 158, §21; Code 1923, c. 106, §21.)

§39. Bond for Sale of Attached Land When Defendant Has Not Appeared.—If the defendant whose real estate is attached has not appeared in the action, proceeding or suit, or been served with a copy of the attachment sixty days before such judgment, decree or order, no sale of the real estate so attached shall be made until the plaintiff, or some one for him, shall give bond, with sufficient security, in such penalty as the court shall approve, with condition that the plaintiff will perform such future order as may be made by the court in the action or suit, in case the defendant appear and make defense therein within the time prescribed by law: Provided, That after the right of a defendant to appear and make defense in any such action or suit shall have expired by limitation or otherwise, as prescribed in this chapter, a sale of such real estate may be made under the judgment, order or decree, whether such bond has been given or not.(Code 1849, c. 151, §24; Code 1860, c. 151, §24; Code 1868, c. 106, §23; 1882, c. 158, §22; Code 1923, c. 106, §22.)

§40. Bond for Sale of Attached Personal Property When Defendant Has Not Appeared.—If personal property be levied upon, and ordered to be sold, where there has been no such appearance or service of the attachment as is mentioned in the preceding section, and no bond has been given by the plaintiff as provided in section eight of this article, the court shall require such bond to be given by the plaintiff, and if the plaintiff, or some one for him, fail to give such bond within a reasonable time, the court shall order such property to be discharged from the lien of the attachment.(Code 1849, c. 151, §24; Code 1860, c. 151, §24; Code 1868, c. 106, §23; 1882, c. 158, §22; Code 1923, c. 106, §22.)

§41. Intervention of Third Persons; Trial.—Any person interested may file his petition at any time before the property attached as the estate of a defendant is sold under the decree or judgment, or if the proceeds of the sale have not been paid to the plaintiff, or his assigns, within one year after such sale, disputing the validity of the plaintiff’s attachment thereon, or stating a claim thereto, or an interest in or lien on the same, under any other attachment or otherwise, and stating the nature of such claim, and, upon such petitioner’s giving security for costs, the court, without any other pleading, shall impanel a jury to inquire into such claim, unless trial by jury be waived by the parties, and if it be found that the petitioner has title to, or a lien on, or any interest in, such property or its proceeds, the court shall make such order as is necessary to protect his rights. The costs of such inquiry shall be awarded to the prevailing party.(Code 1849, c. 151, §25; Code 1860, c. 151, §25; Code 1868, c. 106, §24; 1882, c. 158, §23; Code 1923, c. 106, §23.)

§42. Priority of Attachments.—The attachment first served on the same personal property, or on the person having such property in his possession, or on the person indebted to the defendant in the attachment suit, shall have priority of lien; and the officer making the levy shall note on the order of attachment the day and hour at which the levy is made. Provided, That where two or more attachments are delivered to the same officer at different times to be served, he shall serve them in the order in which he receives them, and when they are delivered at the same time they shall be served at the same time, and, if more than one of such attachments be sustained, such of them as are sustained shall be satisfied pro rata out of the proceeds of the attached property.(Code 1849, c. 151, §26; Code 1860, c. 151, §26; Code 1868, c. 106, §25; 1882, c. 158, §24; Code 1923, c. 106, §24.)

§43. Rehearing After Judgment or Decree on Service by Publication.—If a defendant against whom, on publication, a judgment or decree has been or shall hereafter be rendered, in an action, suit, or proceeding in which an attachment is sued out and levied as provided in this article, or the personal representatives of such defendant shall return to, or appear openly in this State, he may, within one year after a copy of such judgment or decree has been or shall be a served upon him, at the instance of the plaintiff, or within two years from the date of such judgment or decree, if he be not so served, petition to have the proceedings reheard. On giving security for the costs which have accrued and shall thereafter accrue, such defendant shall be admitted to make defense against such judgment or decree, as if he had appeared in the case before the same was rendered, except that the title of any bona fide purchaser to any property, real or personal, sold under such attachment, shall not be brought in question or impeached. But this section shall not apply to any case in which the petitioner, or his decedent, was served with a copy of the original process in the action, suit or proceeding wherein the attachment issued, more than sixty days before the date of the judgment or decree, or to a case in which he appeared and made defense.(Code 1849, c. 151, §27; Code 1860, c. 151, §27; 1865, c. 29, §27; Code 1868, C. 106, §26; 1870, c. 109, §§1, 2; 1871, c. 214; 1882, c. 158, §25; 1909, c. 41; Code 1923, c. 106, §25.)

§44. Judgment on Rehearing; Costs.—On any rehearing or new trial had under the preceding section of this article, if the judgment or decree be for the defendant, the court may order the plaintiff in the original suit, or his personal representative, to restore any money paid him under his judgment or decree therein, with interest from the date of such order, to the defendant, or his personal representative, entitled thereto, and may enter a judgment or decree against such plaintiff therefor, and, if the defendant, or his personal representative, fail to recover on such rehearing or new trial, the original judgment or decree shall be confirmed; and in either case the costs shall be adjudged to the prevailing party.(Code 1849, c. 151, §28; Code 1860, c. 151, §28; 1865, c. 29, §28; Code 1868, c. 106, §33; 1882, c. 158, §26; Code 1923, c. 106, §26.)

§45. Appeal Bond; Return of Property to Owner.—Where a judgment or decree in favor of the plaintiff is rendered in any case in which an attachment is sued out, and, on appeal therefrom, an appeal bond is given with condition to prosecute the appeal with effect, or pay the debt, interest, costs and damages, as well as the costs of the appeal, the officer, in whose custody any attached property may be, shall deliver the same to the owner thereof.(Code 1849, c. 151, §31; Code 1860, c. 151, §31; Code 1868, c. 106, §35; 1882, c. 158, §28; Code 1923, c. 106, §28.)

§46. Who May Give Bond.—Any bond, authorized or required by any section of this article, may be given either by the party himself or by any other person.(Code 1849, c. 151, §32; Code 1860, c. 151, §32; Code 1868, c. 106, §36; 1882, c. 158, §29; Code 1923, c. 106, §29.)

§1. Exemptions of Personal Property.—Any husband or parent residing in this State, or the widow, or the infant children of deceased parents, may set apart and hold personal property not exceeding two hundred dollars in value to be exempt from execution or other process, except as hereinafter provided. Any mechanic, artisan or laborer residing in this State, whether he be a husband or parent, or not, may hold the working tools of his trade or occupation to the value of fifty dollars exempt from forced sale or execution: Provided, That in no case shall the exemption allowed any one person exceed two hundred dollars.(Const. 1872, art. 6, §48; 1864, c. 29, §1; 1872-3, c. 193, §1; 1881, c. 19, §23; Code 1923, c. 41, §23.)

§2. Conveyance of Exempt Property.—Any deed of trust, mortgage or other writing made by a husband or parent to give a lien on property which has been set apart as exempt from levy, under the provisions of this article, shall be void as to such property, if such writing be made within one year after such property has been so set apart.(Code 1849, c. 116, §6; Code 1860, c. 116, §6; Code 1868, c. 71, §6; Code 1923, c. 71, §6.)

§3. Method of Claiming Exemption.—When a debtor claims personal property as exempt under the provisions of this article, he shall deliver to the officer holding the execution or other process, a list by separate items with the value of each item, according to the belief of the debtor, of all personal property and estate owned or claimed by him, including money, bonds, bills, notes, claims and demands, with the residence of the person against whom such bonds, bills, notes, claims and demands are, and shall verify such list and valuation by affidavit, which affidavit shall also show that the debtor is entitled to such exemption, and shall specify the character in which he claims to be so entitled, as for example, that he is a husband. If the value of the property named in such list exceeds, as stated therein, two hundred dollars, the debtor shall state at the foot thereof what part of such property he claims as exempt, as aforesaid; but if such value does not exceed two hundred dollars, as so stated, the claim of exemption shall be held to extend to the whole thereof without stating more; and if no appraisement thereof be demanded, as hereinafter provided, the property so claimed shall be set apart to the debtor as exempt as aforesaid. If the husband or wife owning such property be absent, or incapable of acting, or neglect or decline to act, the claim may be made, the list delivered, and the affidavit made by, the other spouse, with the same effect as if made by the owner. The officer shall immediately, upon receipt of the list, exhibit the same to the creditor, his agent or attorney.(1864, c. 29, §2; Code 1868, c. 41, §24; 1872-3, c. 193, §3; 1881, c. 19, §24; Code 1923, c. 41, §24.)

§4. Selection of Appraisers.—If, within five days after the delivery of the list to the officer, the creditor, his agent or attorney, demand an appraisement of the property listed under the preceding section, two disinterested householders of the neighborhood shall be chosen, within twenty-four hours of such demand, one by the debtor, his agent or attorney, or, in their absence or failure to act, by his spouse, and the other by the creditor, his agent or attorney and these two, if they cannot agree, shall select a third; but if either party fail to choose an appraiser, or the two fail to select a third, or if one or more of the appraisers fail to act, the officer shall fill the vacancy.(1864, c. 29, §2; Code 1868, c. 41, §24; 1872-3, c. 193, §3; 1881, c. 19, §24; Code 1923, c. 41, §24.)

§5. Appraisement.—The appraisers shall forthwith proceed to make a list by separate items, of the personal estate selected by the debtor, to the value of two hundred dollars, as near as may be, affixing to each item the value they may agree on, and annexing to the list their affidavit to the following effect: “We solemnly swear that, to the best of our judgment, the above is a fair cash valuation of the property therein described;” which affidavit shall be signed by two appraisers at least, and be certified by some person authorized to administer oaths.(1864, c. 29, §3; Code 1868, c. 41, §25, 1872-3, c. 193, §3; 1881, c. 19, §25; Code 1923, c. 41, §25.)

§6. Officer’s Return.—The list shall be delivered to the officer holding the execution, order of sale or other process, and be by him annexed to and made part of his return; and the property therein specified shall be exempt from levy and sale, and the other personal estate of the debtor shall remain subject thereto. The officer shall also annex as part of his return the list specified in the third section of this article.(1864, c. 29, §3; Code 1868, c. 41, §25; 1872-3, c. 193, §3; 1881, c. 19, §25; Code 1923, c. 41, §25.)

§7. Exemption of Claim.—When an attachment or suggestion has been served on a person owing a claim or demand to the debtor which is by him exempted as aforesaid, the officer shall, upon request, release such claim or demand by giving the debtor, his spouse, agent or attorney, a written certificate of such exemption, which certificate shall be delivered to the person owing the claim or demand, who shall thereupon be entitled to pay the same to the debtor.(1864, c. 29, §3; Code 1868, c. 41, §25; 1872-3, c. 193, §3; 1881, c. 19, §25; Code 1923, c. 41, §25.)

§8. Sale or Refusal to Release Exempt Property; Penalty.—Any officer who shall sell any property so claimed as exempt, after the provisions of the third section of this article have been complied with by the debtor, his agent, attorney, or spouse, shall forfeit to such debtor double the value of the propery so sold, which forfeiture may be recovered from the officer and his sureties in his official bond in any court having jurisdiction in the case. And any officer failing to release any money or property in his control which shall have been exempted, or failing to deliver the same if in his possession, to the debtor, his agent, attorney or spouse, upon request, shall forfeit to the debtor five dollars for each day such failure may continue, which forfeiture may be recovered from the officer and his sureties in an action upon his official bond in any court having jurisdiction. In an action on such bond or on an indemnifying bond taken by such officer, defense may be made on the ground that the debtor was not entitled to exemption as stated in the affidavit accompanying his list.(1864, c. 29, §3; Code 1868, c. 41, §25; 1872-3; c. 193, §3; 1881, c. 19, §25; Code 1923, c. 41, §25.)

§9. Compensation of Appraisers.—Each appraiser shall be entitled to one dollar, to be paid by the creditor if it appear that the property claimed by the debtor as exempt did not exceed two hundred dollars in value; otherwise to be paid by the debtor.(1864, c. 29, §4; Code 1868, c. 41, §26; 1872-3, c. 193; §4; 1881, c. 19, §26; Code 1923, c. 41, §26.)

§10. Right of Exemption of Widow or Minor Children.—After the death of a husband or parent residing in this State, his surviving spouse or minor children, or such of them as there may be, may select personal estate of the deceased, not exceeding two hundred dollars in value, and hold the same exempt from any debts or liabilities of the deceased spouse or parent, contracted or incurred by the deceased in his lifetime. But the personal representative or any creditor of the deceased may have the personal estate so selected appraised as prescribed in the preceding sections of this article, and with like effect ; and no greater amount than two hundred dollars of the personal estate of the deceased shall be exempt by virtue of this provision; and if during his lifetime, he had himself set apart personal estate to be exempt from execution and other process, the same shall be subject thereto after his death, so far as it is not selected as aforesaid by his surviving spouse and minor children, or such of them as there may be.(1864, c. 29, §5; Code 1868, c. 41, §27; 1872-3, c. 193, §5; 1881, c. 19, §27; Code 1923, c. 41, §27.)

§11. Purchase Money or Taxes; No Exemption.—No exemption claimed under the preceding sections of this article, or any of them, shall affect or impair any claim for the purchase money of the personal estate in respect to which such exemption is claimed, or any proceeding for the collection of taxes, or county or district or municipal levies.(1864, c. 29, §17; 1867, c. 115, §17; Code 1868, c. 41, §28; 1872-3, c. 193, §6; 1881, c. 19, §28; Code 1923, c. 41, §28.)

§12. How Appraisement May be Set Aside.—The circuit court of the county, or judge thereof, in vacation, on motion of any person aggrieved, may set aside any appraisement made as provided in this article, and order a new appraisement to be made and returned, and appoint appraisers for that purpose, and make such order respecting the costs as may be deemed just.(1849, c. 29, §16; Code 1868, c. 41, §29; 1872-3, c. 193, §7; 1881, c. 19, §29; Code 1923, c. 41, §29.)

§13. Transfers to Avoid Exemption.—It shall be unlawful for any person to institute, or permit to be instituted, proceedings in his own name, or in the name of any other person, or to assign or transfer, either for or without value, any claim for debt, or liability of any kind, held by him against a resident of this State, for the purpose of having payment of the same, or any part thereof, enforced out of the wages that may be exempted by virtue of the provisions of this article by proceedings in attachment or garnishment, in courts, or before justices of the peace, in any other state than in the State of West Virginia; or to send out of this State by assignment, transfer, or in any other manner whatsoever, either for or without value, any claim or debt against any resident thereof, for the purpose or with the intent of depriving such person of the right to have his wages exempt from distress, levy or garnishment, according to the provisions of this article. And the person instituting such suit, or permitting such suit to be instituted, or sending, or assigning, or transferring any such claim or debt for the purpose, or with the intent aforesaid, shall be liable in an action of debt to the person from whom payment of the same or any part thereof shall have been enforced by attachment or garnishment, or otherwise, elsewhere than in the State of West Virginia, for the full amount, payment whereof shall have been so enforced, together with interest thereon, and the cost of the attachment or garnishment proceedings, as well as the costs of such action to recover the same.

The fact that the payment of a claim or debt against any person entitled to the exemption provided for by this article has been enforced by legal proceedings in some state other than the State of West Virginia, in such manner as to deprive such persons to any extent of the benefit of such exemption, shall be prima facie evidence that any resident of this State who may at any time have been owner or holder of such claim or debt has violated this section.(1897, c. 47, §§1, 2; Code 1923, c. 41, §29a.)

§14. Unripe Crops Exempt.—No crop shall be liable to distress or levy until it is mature, or has been severed from the soil, except that Indian corn may be taken at any time after the fifteenth day of October of the year when it was planted.(Code 1860, c. 49, §32; 1881, c. 19, §18; Code 1923, c. 41, §18.)

§1. Homestead; Persons Entitled.—Any husband or parent residing in this State, or the infant children of deceased or insane parents, may hold a homestead of the value of one thousand dollars, subject to the provisions of section forty-eight of article six of the Constitution of this State, upon complying with the provisions of the next section of this article.(1864, c. 29, §7; Const. 1872, art. 6. §48; 1872-3, c. 193, §8; 1881, c. 19, §30; Code 1923, c. 41, §30.)

§2. Method of Setting Apart Homestead.—Every husband or parent, and every guardian or curator of any infant child or children of deceased or insane parents, desiring to set apart such homestead, may do so by a writing executed and acknowledged, in the same manner that deeds are executed and acknowledged, in the following form or to the following effect:

This is to certify that I have set apart as a homestead for my own use (or for the use of ........................., the infant child, or children, of .................., deceased, or who is insane, for whom I am guardian, or curator, as the case may be), the following real estate, to-wit: All that certain piece or parcel (or lot, as the case may be), of land situate in the county (or counties, as the case may be), of..........................., and bounded and described as follows, to-wit: (Here insert such description of the tract or parcel or lot of land as will clearly identify the same) together with the premises and appurtenances thereunto belonging.

Witness the following signature, this........ day of.............., 19........

Such writing, when executed and acknowledged as aforesaid, shall be presented to the clerk of the county court of the county in which such real estate or the greater part thereof may be, and the same shall be recorded by such clerk in a book to be provided by the county court and kept by him for that purpose. But no tax shall be charged or paid upon such writing.(1864, c. 29, §8; 1872-3, c. 193, §9; 1881, c. 19, §31; Code 1923, c. 41, §31.)

§3. Debts Enforceable Against Homestead.—The real estate, so set apart as aforesaid, shall from the time such writing as is mentioned in the next preceding section is, or has been, delivered to such clerk for record, be exempt from all debts and liabilities thereafter contracted and incurred, except debts incurred for the purchase money thereof, or for the erection of permanent improvements thereon, and claims for taxes or county or district or municipal levies due thereon. But it shall not be exempt from liens and all other debts and liabilities contracted and incurred prior to the delivery of such writing for record as aforesaid. But nothing herein contained shall affect or impair any right acquired under chapter one hundred and ninety-three of the acts of one thousand eight hundred and seventy-two and three.(1872-3, c. 193, §8; 1881, c. 19, §32; Code 1923, c. 41, §32.)

§4. Effect of Increase in Value of Homestead.—If the homestead, so set apart as aforesaid, shall not be of greater value than one thousand dollars, at the time of the execution and recordation of such writing, the same shall not be affected by any increase in the value thereof afterwards, unless such increase is caused by permanent improvements made thereon. But any creditor of the person owning such homestead may file his bill in equity, alleging that the value thereof, at the time of the execution and recordation of such writing, was more than one thousand dollars, or that by reason of permanent improvements made thereon since such execution and recordation such homestead is of greater value than one thousand dollars, and if the court shall be satisfied, from the proofs in the cause, that the allegations of such bill are true, it shall make such order or decree as may be necessary to subject such excess of value, above the sum of one thousand dollars, to the payment of the debt, or demand of such creditor. And if more than one creditor shall join in such bill, and their debts or claims be of equal priority, such excess shall be paid pro rata upon the debt or claim of each.(1864, c. 29, §12; 1872-3, c. 193, §15; 1881, c. 19, §33; Code 1923, c. 41, §33.)

§5. Homestead of Infant Children.—In case of the death of a husband or parent owning such homestead, the benefit thereof shall descend to his or her minor children, and shall be held and enjoyed by them as such homestead, until all of such infants attain the age of twenty-one years unless they sooner die.(1864, c. 29, §11; 1872-3, c. 193, §13; 1881, c. 19, §34; Code 1923, c. 41, §34.)

§1. Recordation of Federal Tax Lien; Release; Fee.—Pursuant to the authority of section three thousand one hundred and eighty-six of the Revised Statutes of the United States, passed July thirteen, eighteen hundred and sixty-six, and acts of congress amendatory thereof (United States Code, Title 26, chapter 3, section 115), notices of federal tax liens and certificates discharging such liens may be filed in the office of the clerk of the county court of one or more of the counties of this State. The clerk of the county court of every county of this State shall keep in his office in a well-bound book a federal tax lien docket, in which he shall, upon the filing in his office of any notice of a lien upon the property of any person in favor of the United States for the amount of any tax, including any interest, penalty, additional amount, or additions to such tax, together with any costs that may accrue in addition thereto, record such notice without delay. He shall index such notice in the name of the person against whom the lien is claimed. No such tax shall be a valid lien as against any mortgagee, purchaser or judgment creditor, until such notice shall be filed in the office of the clerk of the county court of the county or counties in which the property subject to such lien is situated.

The clerk of such county court shall, upon the filing in his office of any release or partial release of such lien issued by the collector of internal revenue, record the same and make proper marginal notation thereof in such federal tax lien docket. No fee shall be charged by such clerk for recording such notice of lien, but he shall charge a fee of twenty-five cents for recording such release or partial release.(1927, c. 56, §§1, 2, 4, 5.)

§1. Definition of Lienor.—The word “lienor” as used in this article shall mean the person claiming or asserting a lien upon personal property.

§2. Property Subject to Other Liens; Priority.—Any lienor shall take such rights as a purchaser of the property deposited with him would take, and shall take subject to other titles, interests, liens, or charges in the same manner that a purchaser would take. The lienor’s rights shall be determined as of the time when the property was deposited with him, except that if such lienor shall receive actual notice of such other liens or charges after he has received possession of the property, any further charges incurred by him after such notice, except such as shall be necessary for the storage or preservation of the property while holding such property for charges incurred before such notice, shall be subordinate to such other liens or charges of which he had actual notice.

§3. Improver’s Lien on Personal Property.—A person who, while in possession thereof, makes, alters, repairs, stores, transports, or in any way enhances the value of an article of personal property, or boards, pastures, feeds, trains, improves or transports any animal, shall have a lien upon such article or animal while lawfully in the possession thereof, for the charges agreed upon, or, if no charges be agreed upon, then for his just and reasonable charges for the work done or the board or storage or transportation furnished, and may retain possession thereof until such charges are paid. Such lien shall be good against the person who deposited the property with the lienor, and against any other person by whose authority or with whose consent the property was deposited. If two or more articles of personal property are made, altered, repaired, stored, transported or enhanced in value as aforesaid, or two or more animals are boarded, pastured, fed, trained, improved or transported as aforesaid, under one contract or agreement, any one or more of such articles or animals may be held under the lien, hereinbefore mentioned, for all of the charges upon all such articles included in such contract or agreement.

§4. Lien of Bailee of Animals or Vehicles.—A person keeping a livery stable, or boarding stable for animals, or a garage or storage place for automobiles or other vehicles, or who boards, pastures, feeds or trains animals for hire, has a lien upon such animals or vehicles for the sum due him for the care, boarding, pasturage, feeding, or training of such animals, or the care, keeping or storage of such vehicles, even though such animals or vehicles are permitted to be taken out of the possession of the one claiming such lien, if the contract between the owner and the person claiming such lien for keeping, boarding, pasturage, feeding, training or storage, has not been terminated at the time such animal or vehicle is taken out of such possession: Provided, however, That any purchaser of such animal or vehicle, while out of the possession of the person claiming such lien, shall take such property free of such lien, unless he had actual notice at the time of such purchase that such animal or vehicle was being kept, stored, boarded, pastured, fed or trained by some person other than the owner thereof: Provided further, That the lien hereinbefore provided for in this section shall not be valid as against any person other than the owner of such animal or vehicle, whether such other person have notice of the claim of lien or not, for any charges incurred more than three months prior to the time when such person other than the owner acquired his interest in the animal or chattel, unless the animal or chattel was, at the time of the acquisition of such interest, actually in the possession of the person claiming such lien.(Code 1849, c. 90, §11; Code 1860, c. 90, §11; Code 1868, c. 100, §15; Code 1923, c. 100, §15.)

§5. Lien for Lodging and Board.—The owner or keeper of any hotel, inn, lodging house, restaurant, eating house or boarding house shall have a lien upon, and may retain possession of, the baggage, luggage or other personal property of any kind, brought to such hotel, inn, lodging house, restaurant, eating house or boarding house by, or with the consent of, the owner thereof, for the amount of his lawful claim for lodging, board or other accommodations or facilities furnished by him at that time to such person bringing the same, or to any other person for whose charges the person so bringing such property is liable.(1891, c. 39, §32; 1899, c. 48, §32; Code 1923, c. 145, §32.)

§6. Lien of Humane Officer.—When any humane officer shall provide any neglected or abandoned animal with proper food, shelter and care, he shall have a lien upon such animal for the expense thereof, and such expense shall be charged against the owner of such animal. Until the humane officer shall take possession, or place the animal in the possession of some person other than the owner, such lien shall not be good against a purchaser of the animal from the owner, for value, and without notice of the facts creating the lien.(1919, c. 118, §14f; Code 1923, c. 149, §14f; 1923, c. 47, §14f.)

§7. Recovery of Possession by Lienor.—When any personal property lawfully held by a creditor in his possession under a lien shall be wrongfully taken from his possession by the owner thereof, the creditor shall have the right to recover the possession thereof, from the owner or any creditor of the owner, or any other person except a puchaser of the property for value without notice of the creditor’s right under his lien, in the same manner as an owner of personal property may recover the possession thereof.

§8. Lien for Service of Male Animals.—The owner of any stallion, jack or bull, that is duly registered under the laws of the State of West Virginia, shall have a lien upon the foal or calf thereof, whenever the service of such stallion, jack or bull was had by contract with the owner, or agent of the owner, of the dam or cow of such foal or calf, at the time of such service. Such lien shall cease unless the person desiring to avail himself thereof shall, within six months from the birth of such foal or calf, file before some justice, in the county in which such foal or calf may be, his own affidavit, or that of some credible person, stating the amount of his lien against such foal or calf, and that such amount is due by contract, also a description of the foal or calf upon which such lien is claimed. Such affidavit shall be filed and preserved by such justice, for which service he shall receive the fee provided by law. Upon the filing of such affidavit, such proceedings shall be had for the enforcement of such lien as are provided in section seventeen of this article.(1889, c. 21, §1; 1917, c. 6, §27; Code 1923, c. 75, §27.)

§9. Lien on Vessels.—Any citizen of this State shall have a lien upon any domestic steam boat, steamer or vessel, propelled wholly or in part by steam, gas, fluid, naphtha, or electricity, which plies upon the navigable waters of this State, and which is registered in this State, for all work and labor done upon such vessel, and for all materials, goods, wares and merchandise furnished such vessel by any such citizen.(1882, c. 64; 1909, c. 45; 1917, c. 6, §26; Code 1923, c. 75, §26.)

§10. Lienor’s Right to Compensation for Storage.—Any lienor lawfully holding personal property in his possession under a lien shall be entitled to reasonable compensation for the storage or keeping of such property, or for the expense of having it stored or kept at some other place, and for any other trouble or expense necessarily incurred in the care and preservation of such property, and the property so held shall be subject to a lien for such charges.

§11. Assignability of Liens.—Whenever any lienor shall assign to any other person the debt or claim secured by a lien, such assignee shall be entitled, unless it is otherwise expressly agreed, to take possession of the property and hold it by virtue of the lien, in the same manner as his assignor was entitled to hold it before the assignment.

§12. Liability of Lienor or Pledgee for Safe Return of Property.—Whenever any lienor or pledgee or his assignee shall lawfully deliver the possession of the property which he holds under a lien or pledge to any third person, by reason of any assignment, lawful repledge, or otherwise, such lienor or pledgee shall be liable to the owner of the property for the safe keeping and safe return of such property, and shall in such case be answerable for its loss or for any damage to it while it was out of his possession.

§13. How Lien May be Waived or Released.—Any lien or pledge mentioned in this article which is dependent upon the lienor’s possession shall be released by the lienor:

(a) By the voluntary surrender of the possession of the property upon which the lien is claimed;

(b) By the payment or tender by the owner of such property, or any person having an interest in such property, to the lienor, of the amount of the debt due such lienor, for which debt such lien is properly held;

(c) By the assertion of the person holding such property of some other claim or interest in the property, inconsistent with the right of the owner to have possession of his property upon the payment of the debt for which a lien might lawfully have been claimed;

(d) By the fraudulent assertion of a claim of an amount greater than is due to such claimant for the services or charges for which the lien is claimed;

(e) By the removal of the property, by the lienor, outside the State of West Virginia, without the written consent of the owner of the property: Provided, however, That this subdivision shall not apply to notes, bonds, certificates of stock, warehouse receipts, bills of lading, or other evidences of indebtedness or deposit;

(f) By the failure or refusal, upon the written demand of the owner of the property, or upon the written demand of any other person lawfully entitled to discharge the lien and receive the property into his possession, to return the property without expense to the owner thereof, other than the expense mentioned in section ten of this article, to the place where the property was first deposited with the lienor by the owner, so that the owner or such other person may redeem the property: Provided, however, That if such place is no longer within the possession or control of the lienor, the lienor may designate some other convenient place, not more than one-fourth mile distant from such place of deposit, where, at some convenient time within ten days after the demand made upon the lienor, the owner or other person entitled to do so may receive the property upon the payment of the debt and other lawful charges for which the lien is held, and, in such case, unless the owner shall appear at such time and place and pay or tender the amount of the debt and other lawful charges, the lienor’s lien shall not be lost, but the lienor shall have a lien for the expense of bringing such property to such place.

§14. Enforcement of Lien or Pledge; Sale of Property.—Any person holding personal property in his possession under a lien or pledge may satisfy such lien in any manner agreed upon between the owner and the lienor, or, if there be no such agreement, in the following manner:

The lienor or pledgee shall give a written notice to the person on whose account the goods are held, and to any other person known by the lienor to claim an interest in the goods. Such notice shall be given by delivery in person or by registered letter addressed to the last known place of business or abode of the person to be notified. The notice shall contain:

(a) An itemized statement of the lienor’s or pledgee’s claim, showing the sum due at the time of the notice and the date or dates when it became due;

(b) A brief description of the goods against which the lien or pledge exists;

(c) A demand that the amount of the claim as stated in the notice, and of such further claim as shall accrue, shall be paid on or before a day mentioned, not less than ten days from the delivery of the notice if it is personally delivered, or from the time when the notice should reach its destination, according to the due course of the post, if the notice is sent by mail; and

(d) A statement that unless the claim is paid within the time specified the goods will be advertised for sale and sold by auction at a specified time and place.

In accordance with the terms of a notice so given, a sale of the goods by auction may be had to satisfy any valid claim of the lienor or pledgee for which he has a lien or pledge on the goods. The sale shall be had in the place where the lien or pledge was acquired, or, if such place is manifestly unsuitable for the purpose, at the nearest suitable place. After the time for the payment of the claim specified in the notice to the depositor has elapsed, an advertisement of the sale, describing the goods to be sold, and stating the name of the owner or person on whose account the goods are held, and the time and place of the sale, shall be published once a week for two consecutive weeks in a newspaper published in the place where such sale is to be held. The sale shall not be held less than fifteen days from the time of the first publication. If there is no newspaper published in such place, the advertisement shall be posted at least ten days before such sale in not less than three conspicuous places therein, one of which places shall be the premises where the property is held, under the lien: Provided, however, That if the property to be sold is of the value of less than five hundred dollars, then it shall not be necessary to advertise the sale in a newspaper as hereinbefore provided, but notice of the sale may be published by posting the same in three conspicuous places at the time and in the manner hereinbefore provided.

From the proceeds of such sale or pledge the lienor or pledgee shall satisfy his lien, including the reasonable charges of notice, advertisement and sale. The balance, if any, of such proceeds shall be held by the lienor or pledgee and delivered on demand to the person to whom he would have been bound to deliver or justified in delivering the goods.

At any time before the goods are so sold any person claiming a right of property or possession therein may pay the lienor or pledgee the amount necessary to satisfy his lien or pledge and to pay the reasonable expenses and liabilities incurred in serving notices and advertising and preparing for the sale up to the time of such payment. The lienor or pledgee shall deliver the goods to the person making such payment, if he is a person entitled to the possession of the goods, on payment of charges thereon. Otherwise the lienor or pledgee shall retain possession of the goods according to the terms of the original contract of deposit.

§15. Perishable or Hazardous Goods; Sale.—If goods to be sold under the provisions of the preceding section are of a perishable or hazardous nature, or by keeping will deteriorate greatly in value, the lienor or pledgee may give such notice to the owner, or to the person in whose name the goods are stored, as is reasonable and possible under the circumstances, to satisfy the lien or pledge upon such goods, and to remove them, and in the event of the failure of such person to satisfy the lien or pledge and to remove the goods within the time so specified, the lienor may sell the goods at public or private sale without publication or posting of notices. If the lienor after a reasonable effort is unable to sell such goods, he may dispose of them in any lawful manner, and shall incur no liability by reason thereof. The proceeds of any sale made under the terms of this section shall be disposed of in the same way as the proceeds of sales made under the terms of the preceding section.

§16. Remedies of Lienor or Pledgee.—The remedy for enforcing a lien or pledge herein provided in the two preceding sections does not preclude any other remedies allowed by law for the enforcement of a lien or pledge against personal property nor bar the right to recover so much of the lienor’s or pledgee’s claim as shall not be paid by the proceeds of the sale of the property.

§17. Enforcement of Lien or Pledge by Distress or Attachment.—Any lienor who is entitled to a lien upon personal property of any kind, whether such lienor is in possession of the property or not, or whether such lien is mentioned in this article or not, and any pledgee, may enforce his lien by distress or attachment in the manner authorized by law to be used by a landlord to enforce the payment of rent due, and the owner of such property may defend and protect his rights therein in the manner authorized by law to be used by a tenant in such cases.(1909, c. 43; 1917, c. 6, §24; Code 1923, c. 75, §24.)

§1. Requisites of Release.—Any person entitled to the benefit of any lien on any estate real or personal, or to the money secured thereby, whether the lien was created by conveyance, judgment, decree, lis pendens, notice of attachment or otherwise, may release such lien by a writing signed by him and acknowledged before a clerk of a county court, or other person authorized to take acknowledgments of deeds. Such writing shall be known as a release, and shall be deemed sufficient if it describe the lien to be released by any words that will identify and show an intent to discharge the same. Releases may also be made according to the provisions of section two of this article.(1866, c. 6, §§2, 3; Code 1868, c. 76, §1; 1882, c. 49, §1; Code 1923, c. 76, §1.)

§2. When Trustee May Release; Effect.—A trustee in a trust deed may release the lien of such trust deed:

(a) When the trust deed authorizes the trustee to release the same;

(b) When the trust deed creates a lien to secure debts to persons not named in the trust deed;

(c) When a trust deed creates a lien to secure more than five creditors, even though such creditors be named in the trust deed;

(d) When a trust deed creates a lien to secure notes or bonds or other instruments payable to bearer.

A release executed by the trustee in any of the cases mentioned herein, and properly recorded, shall, as to purchasers for value without notice, be valid and binding, whether the debt secured by such lien had in fact been paid or discharged or not.

§3. Release by Trustee When Unnamed Persons Are Secured; Publication; Effect.—If a trustee in a trust deed which secures persons not named in the trust deed shall publish once each week for three successive weeks, in a newspaper of general circulation in the county where such trust deed is recorded, a notice that he will, on a day named in such notice, such day to be not more than thirty nor less than ten days after the last publication of such notice, release such trust deed, such trustee may execute such release and make distribution of any funds in his hands as such trustee without any liability to any person not named in the trust deed nor known to the trustee to be a beneficiary of the trust.

§4. Form of Release.—Releases and their acknowledgments may be substantially in form or effect as follows:

When such lien is released by the assignee thereof, the assignment thereof, whether of the lien or of the debt secured thereby, must be acknowledged in the same manner as the release, and recorded with such release: Provided, That if any such lien, or the debt secured thereby, shall have been assigned, the same may always be released by the assignee who receives satisfaction thereof, upon the assignor joining therein, without the recordation of the assignment as aforesaid.(1866, c. 6, §4; Code 1868, c. 76, §2; 1882; c. 49, §2; 1883, c. 67; 1917, c. 49; 1921, c. 62; Code 1923, c. 76, §2.)

§5. Partial or Limited Release.—In case of a discharge of only a part of the lien debt, or a release of only a part of the property subject to the lien, or any other partial or limited release, the form of release prescribed in section four of this article may be modified to express the facts and the intention of the parties.

§6. Release by Lienor After Assignment; Liability.—Any person who shall have been entitled to the benefit of any lien and who shall have assigned such lien, or the benefit thereof, or any instrument secured by such lien, to any other person, shall be liable to any person injured by any release executed by such person first mentioned, after such assignment.

§7. Disability of Lienholder.—In case of the death, insanity, or infancy of the person entitled to the lien, the release may be made by the personal representative, committee, or guardian of such person, as the case may be.(Code 1868, c. 76, §3; 1882, c. 49, §3; Code 1923, c. 76, §3.)

§8. Recordation; Effect.—When the release has been so signed and acknowledged, it may be presented for record to the clerk in whose office the lien thereby intended to be released is recorded or docketed, and from and after the time the same is so left for record (which time the clerk shall indorse thereon) such lien shall be discharged and extinguished, and the estate, of whatever kind, bound or affected thereby, shall be deemed to be vested in the former owner or those claiming under him, as if such lien had never existed.(1866, c. 6, §5; Code 1868, c. 76. §4; 1882, c. 49, §4; Code 1923, c. 76, §4.)

§9. Duties of Clerk.—The clerk of the county court shall record and properly index all releases and assignments admitted to record in his office under the provisions of this article, in a well-bound book to be kept exclusively for the purpose, and, when any such instrument is recorded; he shall note the fact on the margin of the record or docket of the lien affected or discharged there by, with a reference to the book and page where such release or assignment is recorded.(1866, c. 6, §6; Code 1868, c. 76, §5; 1882, c. 49, §5; Code 1923, c. 76, §5.)

§10. Refusal to Execute Release; Execution by County Clerk.—In case of the refusal of the party holding such lien to execute a release upon request of the party entitled thereto, the circuit court having jurisdiction may, on motion, after reasonable notice to the party so refusing, and if no good cause be shown against it, direct the clerk of the county court to execute such release, and it shall thereupon have the effect of releases executed under section one of this article. The proceedings shall be at the cost of the party so refusing.(1866, c. 6, §8; Code 1868, c. 76, §6; 1882, c. 49, §6; Code 1923, c. 76, §6.)

§11. Limitation of Article.—Nothing in this article contained shall be construed to authorize the discharge of any lien contrary to the provisions of the instrument under which the lienor claims, or to impair or affect the validity of any deed of release, or other writing discharging any lien in this article mentioned, either heretofore or hereafter created or made.(Code 1868, c. 76, §7; 1882, c. 49, §7; Code 1923, c. 76, §7.)

§12. Satisfaction of Execution; Notation on Judgment Docket.—When an execution issued upon a judgment or decree, which has been entered in the judgment lien docket in the office of the clerk of the county court, is returned satisfied, the clerk, to whose office such return is made, shall certify the same to the clerk of the county court, and such return shall be entered by such clerk in the margin of the docket of such judgment or decree.(Code 1868, c. 76, §8; 1882, c. 49, §8; Code 1923, c. 76, §8.)

§13. Penalty for Failure of Clerk or Other Officer.—If any clerk or other officer shall fail in any duty imposed upon him by this article, he shall be liable to any party injured for all damages caused by such failure, or the person injured may, at his option, recover the sum of fifty dollars from such clerk.(1882, c. 49, §8; Code 1923, c. 76, §8.)