$286. to the claimant of such property all damages which he oct. 11, 1862, may sustain in consequence of such seizure and sale. If such undertaking be given, it shall be returned by the sheriff shall sheriff with the execution. If indemnified sell. $287. § 290. [287.] When the sheriff shall levy upon per- Oct. 11, 1862, sonal property by virtue of an execution, he may per- Forthcoming mit the judgment debtor to retain the same, or any part bond. thereof, in his possession until the day of sale, upon the defendant executing a written undertaking to the sheriff, with sufficient surety, in double the value of such property, to the effect that it shall be delivered to the sheriff at the time and place of sale, and for non-delivery thereof an action may be maintained upon such undertaking by the sheriff or the plaintiff in the execution; but the sheriff shall not thereby be discharged from his liability to the plaintiff for such property. Forthcoming or delivery bond. The giving of this bond, while it is said to operate as an estoppel upon the defendant to deny the truth of its recitals (Crisman v. Matthews, 1 Scam. 148; S. C., 26 Am. Dec. 417; Portis v. Parker, 8 Tex. 23; S. C., 58 Am. Dec. 95), is not a waiver of prior irregularities: Page v. Coleman, 9 Port. 275; Van Cleave v. Haworth, 5 § 291. [288.] Before the sale of property on execu- Oct. 11, 1862, tion, notice thereof shall be given as follows: $288. Notice of sale 1. In case of personal property, by posting written or on execution. printed notice of the time and place of sale in three public places of the county where the sale is to take 14 or. 144. place, not less than ten days successively; 2. In case of real property, by posting a similar notice, particularly describing the property, for four weeks successively, in three public places of the county where the property is to be sold, and publishing a copy thereof once a week, for the same period, in a newspaper of the county, if there be one, or if there be none, then in a newspaper published nearest to the place of sale, or in the newspaper published by the state printer. Notice of sale. - Defendant may waive notice of sale: Shamburger v. Kennedy, 1 Dev. 1; Burroughs v. Wright, 16 Vt. 619; though in some 7 Or. 455. § 292. [289.] All sales of property upon execution shall be made by auction, between nine o'clock in the morning and four o'clock in the evening. After sufficient property has been sold to satisfy the execution, no more shall be sold. Neither the officer holding the execution nor his deputy shall become a purchaser, or be interested in any purchase at such c.le. When the sale is of personal property capable of manual delivery, and not in the possession of a third person, association, or corporation, it shall be within view of those who attend the sale, and be sold in such parcels as are likely to bring the highest price, and when the sale is of real property, and consisting of several known lots or parcels, they shall be sold separately or otherwise, as is likely to bring the highest price, or when a portion of such real property is claimed by a third person, and he requires it to be sold separately, such portion of it shall be sold separately. Sales of real property shall be made at the court-house door. Sales on execution. If a sale abuse of discretion if he fails to do so: be made on a day different from that Bank v. Page, 7 Or. 454. And he specified in the notice, it is a sale should discontinue the sale when he without notice, and may be vacated: has sold enough to satisfy his writ: McConnell v. Gibson, 12 Ill. 128; Wheeler v. Kennedy, 1 Ala. 292; HewWheatley v. Terry, 6 Kan. 427; and son v. Dygert, 8 Johns. 333; Drake v. see the next preceding section. If Murphy, 42 Ind. 82. the sale is not completed on the day named, it may be adjourned by proclamation in presence of the persons in attendance: Crocker on Sheriffs, § 468; and see post, § 292 [289]. Sales en masse, etc. The officer ought to subdivide the property into advantageous parcels, unless it is clear that they will bring more when sold together: American Ins. Co. v. Oakley, 9 Paige, 259; S. C., 38 Am. Dec. 561; Tiernan v. Wilson, 6 Johns. Ch. 411; but he is only responsible for Where land consisted of separate but adjoining tracts, but the sheriff and the purchaser were ignorant of the subdivisions, and the defendant failed to inform the sheriff, or to direct a sale by parcels, it was held that the sale of the land in gross was valid: Smith v. Randall, 6 Cal. 47; S. C., 65 Am. Dec. 475. In Bryan v. Berry, 8 Cal. 135, the court approved of the rule laid down by the supreme court of Illinois in Day v. Graham, 1 Gilm. 435, that when the plaintiff in execution is the purchaser, While puffing or by-bidding at a sale selling cannot purchase: Miles v. Oct, 11, 1862, There is no rule of law which for- Regularity of sale cannot be impeached by a stranger in a collateral proceeding: Kelsey v. Dunlap, 7 Cal. 160. Irregularities must be dealt with by motion to the court: Boles v. Johnston, 23 Id. 226. The plaintiff in execution buying the defendant's property to satisfy the debt is chargeable with all irregularities in the sale; but a stranger is chargeable only with defects of substance in the proceeding: Stephens v. Dennison, 1 Or. 19. If the plaintiff, in the name of another, buy real estate under an execution, such other person will be deemed to have notice of all matters affecting the validity of the judgment and sale under it which were within the knowledge of the plaintiff: Barber v. Reynolds, 44 Cal. 520. of sale. Who may purchase. The officer § 293. [290.] If, at the time appointed for the sale, oct. 11, 1862, the sheriff should be prevented from attending at the $290. place appointed, or being present should deem it for the Adjournment advantage of all concerned to postpone the sale for want of purchasers, or other sufficient cause, he may postpone 19 Or. 465. the sale not exceeding one week next after the day appointed, and so from time to time for the like cause, giving notice of every adjournment by public proclamation, made at the same time. The sheriff for like causes may also adjourn the sale from time to time, not exceeding thirty days beyond the day at which the writ is made returnable, with the consent of the plaintiff indorsed upon the writ. § 294. [291.] When the purchaser of any personal oct. 11, 1862, property capable of manual delivery, and not in the $291. Oct. 11, 1862, » 291. Delivery of erty to purchaser. 16 Or. 147. possession of a third person, association, or corporation, shall pay the purchase-money, the sheriff shall deliver to personal prop him the property, and if desired shall give him a bill of sale containing an acknowledgment of the payment. In all other sales of personal property, the sheriff shall give the purchaser a bill of sale with the like acknowledgment. § 295. [292.] Whenever after the entry of judgment a period of five years shall elapse without an execution. being issued on such judgment, thereafter an execution shall not issue except as in this section provided. Oct. 11, 1862, $292. Execution on dormant judgment. 16 Or. 298. 1. The party in whose favor a judgment is given shall file a motion with the clerk of the court where the judgment is entered for leave to issue an execution. The motion shall state the names of the parties to the judgment, the date of its entry, and the amount claimed to be due thereon, or the particular property of which the possession was thereby adjudged to such party remaining undelivered. The motion shall be subscribed and verified in like manner as a complaint in an action at law. 2. At any time after filing such motion the party may cause a summons to be served on the judgment debtor in like manner and with like effect as in an action at law. In case such judgment debtor be dead, the summons may be served upon his representatives by publication, as in case of a non-resident, or by actual service of the summons. 3. The summons shall be substantially the same as in an action at law, but instead of the notice therein required, it shall state the amount claimed or the property sought to be recovered, in the manner prescribed in subdivision 1 of this section. 4. The judgment debtor, or in case of his death his representatives, may file an answer to such motion within the time allowed to answer a complaint in an action at law, alleging any defense to such motion which may exist. If no answer be filed within the time prescribed, the motion shall be allowed of course. The moving party may demur or reply to the answer. The party $292. Execution on dormant judgment. opposed to the motion may demur to the same or to the Oct. 11, 1862, 6. The order shall specify the amount for which exe- ment. Execution on dormant judgment.-In New York and other states it is held under somewhat similar sections that the application must be made within the period for enforcing judgments provided by the statute of limitations: Kennedy v. Mills, 4 Abb. Pr. 132. In this state it is held that the provision concerning the time for commencing actions on judgments (ante, § 5 [5]) does not apply to domestic judgments, and that a domestic judgment can only be enforced after five years under the provisions of this section: Murch v. Moore, 2 Or. 189; Strong v. Barnhart, $293. § 296. [293.] Whenever real property is sold on exe- Oct. 11, 1862, cution, the provisions of this section shall apply to the subsequent proceedings. 1. The plaintiff in the writ of execution shall be entitled, on motion therefor, to have an order confirming the sale, at the term next following the return of the execution, or if it be returned in term time, then at such term, unless the judgment debtor, or in case of his death, his representative, shall file with the clerk ten days before such term, or if the writ be returned in term time, then five days after the return thereof, his objections thereto. 2. If such objections be filed, the court shall, notwith Confirmation of sale. |