(p) If the owner of an equity of redemption sold on execution should, before the expiration of the time of redemption, fraudulently convey his right to redeem to his son, and furnish means and cause the equity to be redeemed and held in the name of the son for the benefit of the father, with the further purpose of redeeming the estate from the mortgage to be held in like manner, the creditor of the father may seize and sell the equity.li 115 38. When a creditor has seized on execution a right that would expire within sixty days, to redeem from a mortgage, sale, or levy on execution, he may pay or tender to the person entitled thereto the amount the debtor would have to pay to redeem the same; and the officer selling such right shall first pay from the proceeds of sale the amount so paid by the creditor with interest, unless the debtor has paid it; and the residue, if any, shall be applied in satisfaction of the execution.116 LANDS OF BANKS AND MANUFACTURING CORPORATIONS MAY BE SOLD AT AUCTION. 39. The lands of banks or manufacturing corporations, and their titles as mortgagees of lands, may be seized on execution and sold at auction. The officer shall give notice of the time and place of sale fourteen days previous thereto, by posting it in two or more public places in the town where the lands lie, and in a newspaper printed in the county, if any, otherwise in the State paper; and he may by deed convey the same, and a debt secured by such mortgage, and remaining unpaid, will pass with the mortgagee's title to the purchaser, who may recover the premises or debt in his own name. In such action a copy of the mortgage, attested by the register of deeds, shall be received as prima facie evidence of such deed, and of the contracts secured by it, as remaining due at the time of trial. The cashier of the bank or clerk of the corporation, on reasonable request of the officer, shall furnish him with a certified copy of such contract, and of all payments made thereon.117 40. No transfer of such mortgage, or of the debt secured thereby, made by such corporation after notice of the seizure thereof on execution is filed in the registry where the land lies, or given to the party to be affected 115 Legro v. Lord, 10 Me. 161.-116 R. S. c. 76, § 38.-117 R. S. c. 76, § 39. thereby, shall have any validity against the purchaser at such sale.1 118 CORPORATION MAY REDEEM. 41. The corporation may redeem such land, or mortgage and debt, as is provided for the redemption of lands levied on by appraisement; and such right may be attached and sold on execution as the right to redeem from the sale of an equity of redemption may be, and the corporation will have the like right to redeem from such second sale.119 MISCELLANEOUS PROVISIONS. 42. The expenses of levy in any of the modes aforesaid are to be considered as part of the execution, in a levy, sale, or redemption.120 43. Everything which a creditor or debtor is required in this chapter to do, may be done by their heirs, assigns, executors, or administrators, or by any person lawfully claiming under them.1 121 44. The real estate of a deceased person may be taken for payment of his debts, by an execution issued on a judgment recovered against his executor or administrator, and levied on, sold, and redeemed, as if taken in his lifetime; unless prior thereto his estate is decreed insolvent; but such decree made before levy or satisfaction of the execution, shall dissolve an attachment of real estate. When so levied on or sold and redeemed by his heirs, devisees, or their assigns, it shall not be again subject to levy or sale for debts of the deceased.122 (a) Wyman v. Fox, 55 Me. 523, is not applicable since the enactment of c. 37, of the Pub. Laws of 1869, engrafted into the preceding section. 45. When an execution is issued in the name or for the use of the State against a debtor, his real estate may be taken thereby and sold at auction, notice thereof being given, as provided in the thirtieth section hereof, except that notice shall be published in the State paper, and the 118 R. S. c. 76, 40.-119 R. S. c. 76, § 41.-120 R. S. c. 76, § 42.—121 R. S. c. 76 43.-122 R. S. c. 76, § 44. last publication in both papers shall be six days before the sale. The officer shall make and execute to the purchaser a sufficient deed of the estate sold; and the debtor has the same right to redeem, as to redeem lands levied on by appraisement.128 46. When the right of a debtor to a conveyance of real estate by bond or contract is attached, and a deed is made to the debtor during its existence, the attachment shall take effect upon the premises, which may be levied on as in other cases.1 124 47. When, during the attachment, a deed has been given to an assignee, the right of the debtor should be sold on the execution. When the right has been sold, and there has been no previous conveyance to the debtor, the purchaser has the same remedies in his own name, against the obligor or contractor, as the debtor would have had by an action at law to recover damages for non-fulfillment, or by bill in equity to compel a specific performance, and when assignment before attachment is alleged, the assignee may be made a party. Upon refusal of the obligor or contractor, on request of the purchaser, to give correct information of the amount due, or condition remaining to be performed, the purchaser may maintain his bill without previous payment, performance, or tender. Upon a hearing, the court may grant and decree such relief, payment, or performance, as is competent in equity." 125 (r) It is no excuse for withholding the information mentioned in the preceding section, that the purchaser had heard it from others. 126 (s) An attachment of a debtor's interest by virtue of a bond for the conveyance of real estate, is dissolved by a failure to sell in accordance with the statute.127 (t) It seems that if, after an attachment made in a suit against the obligee or his assignee in a conditional bond for the conveyance of real estate, the defendant therein conveyed his interest to a third person, the attachment would give no validity to a seasonable extent; but whatever rights, under such attachment, are acquired by an auction purchase, can be vindicated only by process in equity.12 48. When an assignment of the bond or contract is al 123 R. S. c. 76, § 45.-124 R. S. c. 76, § 46.-125 R. S. c. 76, § 47.-126 Jameson v. Head, 14 Me. 34.-127 Aiken v. Medex, 15 Me. 157.-128 Houston v. Jordan, 35 Me. leged, and the plaintiff in equity contests it, the alleged assignee may be summoned and made a party to the bill, and an issue may be framed to be tried by a jury, who shall find whether such an assignment existed and was valid; and if the assignee does not appear, the assignment is to be regarded as invalid.129 REDEMPTION OF LANDS OF DEFAULTED DEFENDANTS LIVING OUT THE STATE. 49. A defendant, living out the State, defaulted in an action without an appearance or other service than a newspaper publication, may, within six months after the levy of an execution on his real estate, or the sale of a right of redemption, petition for a review of such action; and instead of the year allowed in other cases, he may redeem from such levy or sale at any time within three months after the review is denied, or after final judgment on the writ of review. If such judgment is in his favor, the amount thereof shall be allowed towards such redemption, notwithstanding any conveyance of such estate by the creditor; and if it is larger than the amount of the levy or sale and interest, he shall have an execution for the balance 130 50. No strip or waste shall be made on such estate before or during the pendency of proceedings under the preceding section; and after final judgment in review, the plaintiff in review, besides other remedies, may, within said three months, without a tender or demand to account, bring his bill in equity for the redemption of such estate.191 (u) FORMS OF RETURN ON EXECUTIONS. 1. Set off of executions. [Name of county, ss., [date]. By request of the within-named [debtor], I have set off in part satisfaction of this execution, an execution issued on a judgment recovered by the said [debtor] against the within-named [creditor], before J. S. H., esquire, a trial justice, for dollars damages, and return this execution satisfied in part, to wit, for the sum of dollars costs; and I dollars. [Official signature.] FEES. 129 R. S. c. 76, § 48.—130 R. S. c. 76, § 49.—131 R. S. c. 76, § 50. 2. On the execution set off. [Name of county], ss., [date]. By request of the within-named [creditor], I have set off this execution in part satisfaction of an execution now in my hands against him, in favor of the withinnamed [debtor], issued on a judgment recovered before J. S. H., esquire, a trial justice, for dollars damages, and dollars costs; and I therefore return this execution fully satisfied. [Official signature.] FEES, &c. 3. When neither property nor the body can be found. [Name of county], ss., [date]. By virtue of this execution, I have made diligent search for the property and the body of the within-named [debtor], but could find neither within my precinct; and I return this execution in no part satisfied. 4. Levy on gold and silver. [Official signature.] [Name of county], ss., [date]. By virtue of this execution, I have taken the sum of dollars, current gold (or silver) coin of the within-named [debtor], and have paid thereof to the withinnamed [creditor], the sum of dollars, and retained thereof the sum of for my fees; and I return this execution satisfied in full. [Official signature.] FEES. Levy, $100-$3.00. Travel, &c. 5. When bank-bills are taken and accepted at par value. [Name of county], ss., [date]. By virtue of the within execution, I have taken dollars in bank-notes, of the within-named debtor, and have paid thereof to the creditor, who accepted the same at their par value, the sum of- dollars, in full satisfaction of this execution, and I have retained the sum of dollars, at their par value, for my fees, and I return this execution satisfied in full. [Official signature.] FEES, &c. If bank-notes and other evidences of debts, issued by any moneyed corporation and circulated as money, aré not accepted at their par value by the creditor, they may be sold like other chattels.1 6. When goods and chattels are taken and sold. [Name of county], ss. January 9, 1871. By virtue of this execution, on the first day of January inst., I took as the property of the within-named [debtor],* one horse (being the same that was attached on the original writ, or not), ¶ and having safely kept the same for the space of four days, and having, on the sixth day of said January, given public notice that said horse would be sold at the Elm hotel in-, on the 9th day of said January, at one o'clock in the afternoon, by posting up two notices of the said time and place of sale more than forty-eight hours before said 1 R. S. c. 84, § 2. |