This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
The land of a debtor was first made subject to the claims of creditors by an early statute,1 which provided that one who had recovered a judgment might elect io have the sheriff deliver to him the chattels of the debtor and one-half his land, the writ under which this was done being termed a "writ of elegit," because it recited that the creditor had elected (elegit) to pursue that remedy. Formerly the creditor had merely the right to retain the land taken under this writ until the rents and profits sufficed to pay the judgment, he being known as a tenant by elegit; but now, by statute in England, the creditor may not only take all the debtor's land under the writ, but he may obtain an order for the sale of the land, the proceeds being distributed among all the creditors.2
The writ of elegit has been made use of in but few states, and is at the present day, it seems, obsolete in every state but Delaware.3 In most of the states the same method is authorized for the realization of debts from the land of the judgment debtor as from his chattels, that is, a seizure and sale by the sheriff, and ap1. 13 Edw. I c. 18 (St. Westminster II.).
2. Williams, Real Prop. (21st plication of the proceeds to the payment of the judgment. In the New England states, however, the satisfaction of a judgment out of the debtor's land is usually obtained, not by a sale of the land, but by a delivery of the land, or a part thereof, at a value fixed by appraisers, to the judgment creditor, this being known as a levy "by extent," and the land being said to be "extended." The statutory provisions as to the method of making the extent are full and precise, and they must be strictly followed. A certain period, usually six months or a year, is allowed to the debtor in which he may pay the judgment and recover the extended lands, but, if this is not done, the creditor acquires the whole estate and interest of the debtor absolutely.4 The satisfaction of a pecuniary judgment, whether by a sale under the writ or an extent, is known as an "execution" of the judgment.
Ed.) Sec. 370.
3. Freeman, Executions (3d Ed.) 271.
As a general rule, all legal interests in land are subject to sale under execution.5 But a bare legal title, that is, a legal title not associated with any beneficial interest whatsoever, is not so subject.6 The interest of a tenant at will is not so subject,7 since he has no interest capable of transfer.8 Whether the possibility of an estate created by the limitation of an estate subject to a condition precedent, such as a contingent remainder or an executory devise, is subject to sale under execution would seem ordinarily to depend on whether it is an interest which is capable of transfer,9
4. 3 Freeman, Executions, Sec. 372 et seq.; 2 Dembitz, Land Titles, Sec. 173.
5. 2 Freeman, Executions, Sec. 172.
6. Baker v. Copenbarger, 15 111. 103, 58 Am. Dec. 600; Morrison v. Herrington, 120 Mo. 665, 25 S. W. 568; Mallory v. Clark, 9 Abb. Pr. (N. Y.) 358; Bostick v. Keizer, 4 J. J. Marsh. 597, 20 Am. Dec. 237; Smith v.
McCann, 24 How. (U. S.) 398, 16 L. Ed. 714.
7. Colvin v. Baker, 2 Barb. (N. Y.) 206; Bigelow v. Finch, 11 Barb. (N. Y.) 498; Waggoner v. Speck, 3 Ohio, 292.
8. Ante, Sec. 62(d).
9. So it would ordinarily not be so liable if in favor of uncertain persons. Taylor v. Taylor, 118 Iowa, 407, 92 N. W. 71 while it might be liable if in provided the langauge of the statute authorizing execution sales is sufficiently broad to apply to such a case.10
At common law there was no method by which equitable interests could be reached by execution, but, by the Statute of Frauds,11 it was enacted that the execution might be levied on lands of which any other person or persons were seised or possessed of in trust for the execution defendant. This provision has been adopted or re-enacted in a number of the states, but it has usually been construed as applicable only in cases in which the execution defendant has, under an express declaration of trust, the exclusive enjoyment of a beneficial interest in property, the legal title to which is in another, and neither it not its American counterparts have had the effect of making all equitable interests subject to execution. In some states, however, more liberal statutes have been adopted, subjecting equitable interests generally to execution, while in others the common-law rule which prevailed previous to the Statute of Frauds still controls.12 Equitable interests which cannot be sold under execution may usually be reached by a proceeding in equity, known as a "creditor's bill," or "creditors' suit."13
A sale by a sheriff under a writ of execution is by force of a statutory power,14 and is effective, if legally favor of a certain person, the execution defendant. De Haas v. Bunn, 2 Pa. 335, 44 Am. Dec. 201 (executory devise); White v. Mcpheeters, 75 Mo. 286; In re Packer's Estate, 246 Pa. 116, 92 Atl. 70 (semble).
Occasionally however it appears to be assumed that no contingent remainder is liable to sale under execution. Watson v. Dodd, 68 N. C. 528; Howard v. Peavy, 128 111. 430, 15 Am. St. Rep. 120, 21 N. E. 503; Hill v. Hill, 264 111. 219, 106 N. E. 262; Roundtree v. Roundtree, 26 S. C. 450, 2 S. E.
10. In New York it is said that a contingent remainder is not within the terms of the execution statute. Jackson v. Mid-dleton. 52 Barb. (N. Y.) 9; Sheridan v. House, 4 Abb. Dec. 218.
11. 29 Car. II. c. 3, Sec. 10.
12. 2 Freeman, Executions, Sec.Sec. 187, 189; 11 Am. & Eng. Enc. Law (2d Ed.) 632.
13. 3 Freeman, Executions, Sec. 424 et seq.; 5 Enc. Pl. & Pr. 393. See post. Sec. 551.
14. See ante, Sec. 312.
Made, and followed by a conveyance to the purchaser, to divest the title of the judgment debtor, and to vest it in the vendee. In order that the sale may have this effect, it must be made under a judgment rendered by a court having jurisdiction of the subject-matter and of the parties.15 If the judgment is valid, an innocent purchaser at the sale is not usually affected by irregularities in the proceedings leading up to the sale, though, if the judgment creditor is the purchaser, the rule is different, and he is regarded as chargeable with notice of any irregularities.16
The statutes of a number of states give the judgment debtor a certain period after the execution sale within which he may redeem therefrom. In the absence of statute, there is no right of redemption.17
The sheriff is required, by the statutes of most, if not all, the states, to make a conveyance of the land to the purchaser at the sale, and this is usually regarded as necessary to vest the legal title in the purchaser. This conveyance should recite the recovery of the judgment, the issue of the writ, and the sale thereunder, but any requirements in this regard are regarded as directory merely. The conveyance must usually be executed like other conveyances, and an acknowledgment is, in most states, though not in all, necessary only for the purpose of record. If the conveyance is invalid, the purchaser is ordinarily entitled to have a valid one executed in its place.18
In the case of a sale under execution, the sale is made by the sheriff as a ministerial officer, acting under the writ, and the court has no control over his actions, and, except in a few states, no confirmation of the sale by the court is necessary in order to validate the sale An execution sale is accordingly to be distinguished from the sales hereafter referred to in this chapter, which are made in conformity with the order of a court, and must be confirmed by it, and which are accordingly regarded as the act of the court, though a commissioner or other officer is necessarily employed by the court as an instrument in making the sale. An execution sale is accordingly not, properly speaking, a judicial sale.19
15. Freeman, Executions, Sec.Sec. 19, 20; Kleber, Void Judicial Sales, Sec.Sec. 262-267, 294.
16. 3 Freeman, Executions, Sec. 339 et seq.
17. 3 Freeman, Executions, Sec. 314.
18. 3 Freeman, Executions, Sec. 324 et seq.
The various liens to which land may be subject in behalf of a person other than the owners are enumerated in another part of this work.20 These liens are almost invariably enforced by a sale of the land under the decree of a court of equity for the purpose of paying the amount of the lien from the proceeds. Likewise, equity may decree a sale in a creditors' suit brought to obtain a discovery of assets, to prevent waste and spoliation thereof, or to reach property which is not subject to execution because of its equitable character, or because transferred by a conveyance fraudulent as to creditors.21