When property is sold under execution, the proceeds are applied to the satisfaction of the judgment and the costs and charges of the proceedings; and the surplus, if there be any, is paid to the defendant in execu tion.
Execution against personal property. When the property consists of goods and chattels, in which are included terms for years, the writ used is the fieri facias (q. v.). If, after levying on the goods, etc., under a fieri facias, they remain unsold for want of buyers, etc., a supplemental writ may issue, which is called the venditioni exponas. At common law, goods and chattels might also be taken in execution under a levari facies; though now perhaps the most frequent use of this writ is in executions against real property.
Where it is sought to reach an equitable interest a bill in equity is sometimes filed in aid of an execution ; Laut v. Manley, 75 Fed. 627, 21 C. C. A. 457.
When the property consisted of choses in action, whether debts due the defendant or any other sort of credit or interest belong ing to him, it could not be taken in execu tion at common law ; but now, under statu tory provisions in many of the states, such property may be reached by a process in the nature of an attachment, called an attach ment execution or execution attachment. See ATTACHMENT; CREDITORS' BILL, Execution against real estate. Where lands are absolutely liable for the payment of debts, and can be sold in execution, the process is by fteri facias and venditioni ex pones. In Pennsylvania the land cannot be sold in execution unless the sheriff's jury, under the fieri facias, find that the profits will not pay the debt in seven years. But, practically, lands are almost never extend ed. And, in general, under common-law practice, lands are not subject to sale under execution, until after a levy has been made under the fieri facies, and they are appraised under an inquisition. They are then liable to be sold under a venditioni exponas.
There are in England writs of execution against land which are not in general use here. The extent (q. v.), or extendi facies, is the usual process for the king's debt. The levari facies (q. v.) is also used for the king's debt; and for the subject on a recogni zance or statute staple or merchant (q. v.), and on a judgment in scire facies, in which latter case it is also generally employed in this country.
Execution against the person. This is ef fected by the writ, of capias ad satisfaci endwm, under which the sheriff arrests the defendant and imprisons him till he satisfies the judgment or is discharged by procesS of law ; Freem. Ex. 451. See INSOLVENCY.
This execution is not final, the imprisOn ment not being absolute; whence it has been called an execution quousque; 6 Co, 87.
Besides the ordinary judgment for the payment of a sum certain, there are cific judgments, to do some particular thing. To this the execution must correspond : on a judgment for plaintiff in a real action, the writ is a habere facias seisinani; in ejectment it is a h,abere facias possessionem; for the defendant in replevin, as has already been mentioned, the writ is de retorno ha b endo.
Still another sort of judgment is that in rem, confined to a particular thing: such are judgments upon mechanics' liens and municipal claims, and, in the peculiar prac tice of Pennsylvania, on scire facias upon a mortgage. In such cases the execution is a writ of levari facias. A confession of judgment upon warrant of attorney., with a restriction of the lien to a particular tract, is an analogous instance; but in such case there is no peculiar form of execution ; though if the plaintiff should, in violation of his agreement, attempt to levy on other land than that to which his judgment is confined, the court on motion would set aside the execution.
An execution issued in direct violation of an express agreement not to do so, except in a certain contingency which has not hap pened, will be set aside; Feagley v. Norbeck, 127 Pa. 238, 17 Atl. 900.
The lien of an execution from the judg ment or decree of a court of record relates to its teste, and attaches to all personalty owned by the debtor between the teste and the levy so as to defeat the title of all in termediate purchasers ; Edwards v. Thomp son, 85 Tenn. 720, 4 S. W. 913, 4 Am. St. Rep. 807; not only in the county in which judg-. ment was rendered, but everywhere in the state; Cecil v. Carson, 86 Tenn. 139, 5 S. W. 532. A sale under execution transmits only the debtor's estate, in the same plight and subject to all the equities under which he held it; Threadgill v. Redwine, 97 N. C. 241, 2 S. E. 526.
In Connecticut, Massachusetts, and Maine by common law and immemorial usage, un der a judgment against a town, the prop erty of any inhabitant may be taken in exe cution ; Bloomfield v. Bank, 121 U. S. 121, 7 Sup. Ct. 865, 30 L. Ed. 923.
See EXEMPTION; PIERS FACIA S ; HOME STEAD ; SHERIFF.