erty does not, by mere payment of part of the purchase-money, under an express contract that no title shall vest in him until it is all paid, acquire any interest therein subject to seizure and sale on execution.1 Or where a purchase is made for cash, and a delivery is made at too late an hour for payment, but before presentation of the bill next day a levy was made on it, no title passes before payment as subjects the property to levy. The goods of a principal for the debts of his agent & A legacy for the legatee's debt. A legacy to the wife for the debt of the husband.5 Goods of a testator in the hands of his executor, under an execution against the executor in his own right. But where the executrix used the goods of the testator as her own, was afterwards married, she was not permitted to object to their being taken for her husband's debt. Nor a specific legacy which has been delivered to a legatee by the executor, in an action against the executor.8 A lessor's share in a crop until after it is allotted to him.9 A crop on rented land sold in good faith by the tenant before the issue of an execution.10 Where the hay and straw is to be used on a farm by the terms of a lease, the hay raised is not at the instance of the lessee's creditors.11 Trees cannot be regarded as partaking of the character of emblements or fructus industriales. Hotalling, Hill. 311. Ash v. Putnam, Hill. 302. Olmsted v. Hotalling, Hill, 317. Hitchcock v. Covil, 20 Wend. 167. Gratt. 257. 4 Dawson v. Wood, 3 Suggs v. Sapp, 20 Ga. 100. Skinner's Appeal, 5 Penn. 262. Newman v. Farr, 4 T. R. 651. Gaskell v. Marshall, 1 M. & Rob. 132. Fenwick v. Laycock, 1 G. & II. Grant v. Williams, 6 Ired. 341. Quick v. Staines, 1 B. & P. 293. Babo v. Grimke, 1 McMull. Ch. Alston v. Foster, 1 Dev. Ch. 532. 1 Sage v. Sleutz, 23 Ohio S. 1. Hussey v. Thornton, 4 Mass. 405. Marston v. Baldwin, 17 Mass. 606. Barrow v. Coles, 3 Camp. 92. Barrett v. Pritchard, 2 Pick. 512. Strong v. Taylor, 2 Hill, 326. Herring v. Happock, 15 N. Y. 409. Stearns, Hilton, 86. v. Doub, 19 Cal. 109. White, 46 Cal. 328. Acker v. Campbell, 23 Wend. 259. 372. Piser v. 3 Farmers' Bank v. Kent, 16 304. 337. 9 Gordon v. Armstrong, 5 Ired. 409. Devoe v. Kemp, 3 Hill. (S. C.) 10 Northern v. State, I Ind. 71. " Coe v. Wilson, 46 Me. 314. They only become personalty by actual severance, or by a severance in contemplation of law. The tortious severance of an article from the realty will not subject it to seizure on execution if it was before exempt.2 In Maryland, a debtor's equitable interest in personal property at law. A resulting trust in personalty. An undivided residuary interest in remainder of personal property.5 Personalty conveyed in a mortgage by an executor to indemnify his sureties, while outstanding claims exist upon which his sureties may be liable. Collateral securities deposited with an officer after a levy on personal property, given for its delivery to the debtor, to be returned if the writ is satisfied or otherwise disposed of, he cannot afterwards levy upon such securities in violation of his agreement. Property assigned for the benefit of creditors under an execution against the assignor Property sold at auction bona fide, although after the sale they are left in the debtor's possession, cannot be taken in execution by one of the debtor's creditors who was present at the sale, the change of possession being notorious, there being good and legal considerations to support it.9 Property of a debtor discharged under the bankrupt law, though he continues in possession of it.10 Property held by one for life, in trust for himself and others, on an execution against him." Salary of an officer of a political corporation.12 A ferry license, being a franchise.13 Per Slocumb v. Seymour, 36 N. J. Taunt. 676. Brown v. Wood, 6 L. 138. Rich. Eq. 155. • Congregational Society v. Fleming, 11 Ia. 533. • Woodham v. Baldock, 3 Moore, 3 Martin v. Jewell, 37 Md. 570. 4 Cunningham v. Wood, 4 Humph. 417. 251. 106. Dargan v. Richardson, Dudley, (S. C.) 62. • Perkins v. Mayfield, 5 Port. 182. Bronston v. Robinson, 4 B. Mon. 142. 7 Kimball v. Couchman, 15 Ill. 138. • Williamson v. Clark, 2 Miles, 153. Wooderman v. Baldock, 8 Jezeph v. Ingram, I Moore, Latimer v. Batson, 7 D. & R. Steel v. Brown, 1 Camp. 512. 10 Hindle v. Bell, 1 Holt. 161. "Wylie v. White, 10 Rich. Eq. 294. 12 Chaudet v. De Jong, 16 La. 399. 13 Thomas v. Armstrong, 7 Cal 286. Munroe v. Thomas, 5 Cal. 470 Wood v. Turnpike Co. 24 Cal. 174. sonalty after a sufficient levy on real estate.1 Contingent and complicated contracts cannot be levied upon and sold without being in the possession of the officer at the sale, to be exhibited to the by-standers and assigned to the purchaser, unless a full and accurate description of the particular interest and chose in action, with all its conditions and covenants, and a full explanation of the facts determining the value of the chose, be given by the levy, and announced at the sale.2 Property previously seized upon execution,3 unless the first execution was fraudulent, or the goods were not legally seized. The mere right to personal property in the adverse possession of a third person, which possession originated and continues in good faith. A mere equitable interest in personal property unaccompanied with possession; and could not at common law.* It can neither be seen, handled, or delivered, and where subject to execution, is made so by statute. Deeds, writings, &c.7 Nor can a levy and sale be made of a portion of the undistributed personalty of the estate, merely because the debtor's interest in the estate is of greater value than the property seized.8 ' Powell v. Governor, 9 Ala. 36. Crandall v. Blen, 13 Cal. 15. Backhurst v. Clinkard, I Show. 173. Freeman v. Howe, 20 How. 450. Noe v. Gibson, 7 Paige, 713. Moore v. Wittenburg, 13 La. 22. Lewis v. Buck, 7 Minn. 104. The Oliver Jordan, 2 Curtis, 414. The Robert Fulton, 1 Paine, 620. Harris v. Dennie, 2 Pet. 292. Pope v. 23 Harman, Comb. 217. King v. Manning, Comb. 619. Rice v. Serjeant, 7 Mod. 37. Horton v. Smith, 8 Ala. 73. Carlos v. Ansley, 8 Ala. 900. Boyce v. Smith, 10 Mo. 317. Sexton v. Monks, 16 Mo. 156. Yeldell v. Stemmons, 15 Mo. 143. 7 Francis v. Nash. Cas. 7 Hard. 53. Hancock v. Titus, 39 Miss. 224 CHAPTER VI. REAL ESTATE, LAND, OR REAL PROPERTY SUBJECT TO EXECUTION. - Real Property, what it consists of. General Rule of Property liable. Lands held by Tenants in Common. — Life Estate of Husband. - Estates in Reversion or Remainder. -Rights of Entry and Possession.- Lands held in Trust. - Interest of a Cestui qui Trust and Cestui qui Usc.Land fraudulently conveyed. - Lands of Intestates, &c.Equity of Redemption. - Equitable Interests. - Interest of a Purchaser before Title vests in him. What Rights and Interests are not liable to Sale. - Where they are not liable. $132. IN REGARD TO THE PRINCIPLES RELATING TO REAL PROPERTY OR LAND THAT IS SUBJECT TO EXECUTION, to satisfy the debts of a defendant, it will not be necessary to trace them back to the Roman law for their origin, being the creation of modern legislation and statutory enactments in England and America.1 Land is defined as any ground, soil, or earth whatsoever, as meadows, pastures, woods, &c., and everything annexed to it, whether by nature, as trees, water, &c., or by the hand of man, as buildings, fences, &c. It has an indefinite extent upwards as well as downwards. It legally includes all buildings standing or built on it, trees, fixtures, and fences upon it, and whatever is in a direct line between the surface and the centre of the earth.2 The term "real estate" is co-extensive in meaning with lands, tenements, and hereditaments, and, when applied to an interest in lands or Ante, chap. I. § 48. 2 Canfield v. Ford, 28 Barb. 336. Mott v. Palmer, 1 N. Y. 564. Green v. Armstrong, 1 Denio, 550. Baker v. Johnson, 2 Hill, 342. 3 Pelletrau v. Smith, 30 Barb. 494. other real property, includes all estates or interests in such real property which are held for life or some greater estate, but does not embrace terms for years, and other chattel interests in land.1 The term "property in lands" is not confined to title in fee, but is sufficiently comprehensive to include any usufructuary interest, whether it be a mere leasehold or mere right of possession. Land embraces all titles, legal or equitable, perfect or imperfect.2 The general rule is, with, perhaps, the exception of some few states, to subject all the real property to the payment of debts, and where real property is subject to execution, every legal interest not exempted from such sale is liable to be taken. This remedy, unknown to the common law, is dependent in all cases upon positive statutes. In Virginia and Delaware the exceptions occur, the writ known as the elegit being still in use; but only such lands as the debtor himself can dispose of, or such interest or estate as the debtor had, and might lawfully part with, in lands, can be sold on execution; every interest, contingent or otherwise, provided there is a real interest in the defendant, legal or equitable, even when the title is a bare occupancy or possession." In some states the plaintiff has the option of having either real or personal property sold. In others, if there be no personalty subject to seizure, the rents and profits are appraised for a certain period, and are offered for sale for such time; if they fail to sell for enough to satisfy the judgment, then the land itself is sold. The real estate of a femme couverte, in satisfaction of her debts contracted before marriage.9 Property in any county of the state in which judgment is rendered.19 3 'Westervelt v. People, 20 Wend. 416. Jackson v. Parker, 9 Cow. 73. Leese v. Clark, 20 Cal. 388. State of California v. Moore, 12 Cal. 56. 3 McConnell v. Brown, 5 Mon. 481. Griffith v. Huston, 7 J. J. Marsh. 388. Myers v. Sanders, 7 Dana, 510. Humphrey v. Humphrey, I Yeates, 427. Drake v. Brown, 68 Penn. 223. Thomas v. Bowman, 30 Ill. 84. Tuttle v. Wilson, 24 Ill. 559. Pitts v. McGie, 24 Ill. 610. 8 Gantley's Lessee v. Ewing, 3 How. 707. 9 Fox v. Hatch, 14 Vt. 320. |