Sidor som bilder

ejectment commenced contrary to the provisions of this section shall be dismissed, at the cost of the party instituting the same. [Id., 799, Sec. 44.]

Married women, insane persons, minors, and persons out of the United States, however, are not debarred until the ex. piration of five years from the time such disability shall be removed. [Id., Sec. 45.]

The limitation upon actions for dower is twenty years from the death of the husband; but if at the time of his decease, the widow be under the age of twenty-one years, or insane, the time during which such disability continued forms no part of the twenty years.* [Id. 811, Sec. 112.]

XVI. REAL ESTATE EXEMPTIONS IN INDIANA. The Revised Statutes do not exempt any real estate of a debtor from the operation of judgments or decrees; yet they furnish some protection to debtors and work out in certain cases a measurable exemption of real estate. Whenever any execution has been issued against the lands of a debtor, he may designate the property that shall be first levied upon and sold, and his principal messuage cannot be sold at all, except with his consent, until all his other property subject to taxation, has been exhausted. [R. S., 740, Sec. 393.]

( It is further provided that “no goods and chattels, or lands and tenements of any execution debtor, shall be sold on execution issued out of any Court of Record, for less than two-thirds of the fair value thereof, at the time of such sale,

Statutes of limitations are not in violation of the Constitution of Indiana ; they disturb no rights, but only regulate the remedy. [1 Blackf., 36.]

Technical and continuing trusts not cognizable at law, are not barred by statutes of limitation. (Blackf., 77.]

Limitations do not begin to run until the right of action has fully accrued, and has become perfect. [3 Blackf., 324.]

The limitation upon actions upon judgments rendered before a magistrate, for arrears of rent, assumpsit, on contracts not in writing, replevin, waste, and trespasses on land, is six years; for assault and battery, and for false imprisonment, three years; upon statutes for penalties, two years ; for slander and libels one year, and other actions twenty years. [R. S., 687, Sec. 101.]

[ocr errors]

exclusive of all liens, mortgages or incumbrances thereon." [Id., 757, Sec. 395.]

“For that purpose (to ascertain the value) two disinterested householders of the neighborhood where the levy was made, shall be selected as appraisers, one of whom shall be chosen by the execution debtor, and the other shall be chosen by the plaintiff, his agent or attorney; or in the absence of the plaintiff, his agent and attorney, by the officer executing such writ; and said appraisers shall forth with proceed to value such property according to its fair value at the time; and in case of their disagreement as to such value, they shall choose a like disinterested householder of the neighborhood, and with his assistance they shall complete such valuation.” [Id., Sec. 398.]

"In case such execution debtor shall fail to choose an appraiser within three days after notice of such levy, such officer shall choose an appraiser for him, who shall proceed in all respects as if he had been chosen by such execution debtor.” [Id., Sec. 399.]

“In case any of said appraisers shall fail to complete such valuation, such plaintiff his agent or attorney, or such officer in their absence, or the execution debtor, or the appraisers, if the two remain who were first chosen, as the case may be, shall choose an appraiser in the place of the one before chosen by him or them, and refusing to act; or if such execution debtor shall in such case fail to choose such appraiser within two days after the notice of such refusal to act by the appraiser chosen by him, such officer shall choose an appraiser for him; and any appraiser thus chosen shall proceed in all respects as if he had been chosen in the first instance." [id.,

(Id Sec. 400.]

"Real and personal estate taken in execution shall sell for the best price the same will bring at public auction, over and above two-thirds of the appraised value thereof, as above herein provided." [Id., 409.]

“But the estate or interest of the judgment debtor in any real estate, shall not be sold on execution until the rents and profits thereof shall have first been offered for sale at public auction; and if the same will not sell for a sum sufficient to satisfy such execution, then the estate or interest of the judgment debtor shall be sold by virtue of such execution.” [Id., Sec. 410.]

“But before the rents and profits shall be sold as aforesaid, the same shall be appraised at their fair cash value at the time, estimating and setting down such value for each year separately by the appraisers chosen as aforesaid." [Id., Sec. 411.]

“So many years, not exceeding such term of seven years, shall be sold as will pay and satisfy the principal, interest and costs, due and accruing on such execution, and no more; but if a fraction of a year shall occur in making up the sum due as aforesaid, such fraction shall be carried and conveyed as a whole year to the purchaser, and shall entitle him to the whole year in which such fraction occurs, without his paying the balance of the estimated value of such year.” [Id., Sec. 412.)

Whenever it shall happen that any property exposed to sale on execution, shall not under the foregoing restrictions sell for want of bidders, the officer may return his execution.* [Id., Sec. 419.]

[ocr errors]

The following personal property, when owned by any person having a family, or being a householder, is exempt from levy and sale under any execution, to wit: The necessary wearing apparel of such person and his family; the family bible and school books used by or in the family; one cow and calf, six sheep, and the wool thereof; two beds and the necessary bedding therefor; household and kitchen furniture, not to exceed in value fifteen dollars; one chopping axe, one plow, one weeding hoe; one loom, one spinning wheel, one reel; and the necessary provisions to supply the family for two months; and also the arms and accoutrements required by law to be kept by such person for military duty, or with which he shall have furnished himself, as the member of any military company. But the whole amount of property so exempt can in no case exceed the value of one hundred dollars, exclusive of such wearing apparel, bible, school books, arms, accoutrements, and the two months


The rate of interest upon the loan of forbearance of money, goods or things in action in this State, is at and after the rate of six dollars upon one hundred dollars for one year, and after that rate for a greater or less sum, or for a longer or shorter time. [R. S., 580, Sec. 25.]

The Statute includes judgments, decrees, and liquidated accounts, as well as bonds, bills, notes, and other instruments in writing, stipulating the payment of money. If, however, , it be agreed that no interest shall be charged, such agreement on the part of the creditor, is a waiver of the Statute allowing him interest. In regulating the rate of interest, the Legislature has provided that but six per cent only shall be received ; and to carry such provision into effect, the aid of the law is denied to the creditor or lender for the recovery of excessive interest.

The contract is not void except for the excess; yet the usurer loses his interest for his temerity. Herein the Statute differs from that of New-York, upon which, in the main, it is grounded. While, on the one hand, the usurer's hand is impotent to collect his usury, on the other, the debtor cannot defraud him out of his just and equitable demand for the principal." But see the topic concerning usury.

provisions ; and in all cases, the judgment debtor may claim as exempt from execution any other article or articles, so that the whole value of the property so exempted shall not exceed one hundred dollars. [R. S., 743, Sec. 376.]

As to property not exempt, the debtor may designate what shall be first levied upon and first sold; but no goods or chattels of any execution debtor can be sold on execution issued out of any Court of Record, for less than two-thirds of the fair value thereof at the time of such sale. [R. S., 747, Sec. 395.]

To determine the value of property in such case, two disinterested householders of the neighborhood where the levy shall have been made" may be selected as arpraisers, one by the plaintiff, his agent, or attorney, the other by the debtor himself, or if he fail to do so within three days after notice of the levy, then both may be chosen by the plaintiff, his agent, or attorney; and whenever any of the property cannot be sold by an officer for two-thirds the appraised value thereof, such officer may omit to sell, and return his process, stating his failure to sell. Further process, however, can issue at a future time. [Id., 750, Sec. 404.]


Usury belongs to the series of topics which concern land owners and incumbrancers, as well as business men generally having dealings in the States. Holders of mortgages are particularly concerned in those provisions of law, which regulate the receiving or the agreeing to receive excessive interest. In New-York, all bonds, mortgages and other covenants and contracts wherein or whereby excessive interest shall be reserved or taken, or agreed to be reserved or taken, are absolutely void; but in this State a less rigorous statute prevails. “No contract or assurance for the payment of

money with interest, or upon which interest has been received, contracted for, taken or reserved, after a greater rate than is allowed by the preceding sections, (six per cent) shall be thereby rendered void ; but whenever in any action brought on such contract or assurance, it shall appear upon a special plea to that effect, or otherwise, that a greater rate of interest has been directly or indirectly reserved, contracted for, taken, or received, than is allowed by law, the defendant shall recover his full costs in such suit, and the plaintiff shall only recover judgment for the principal sum due him without interest thereon; or if he shall have taken or received such interest, or any part thereof, before the rendition of such judgment, the same shall be deducted from such principal sum, and

* Interest is not allowable on the open, unliquidated accounts of merchants. The custom of merchants will, however, be considered, but witnesses are rot admissible to prove a custom of merchants in the city of another State, allowing them to charge interest on their accounts, when the courts of that State have refused to recognize the custom. [3 Blackford, 312.]

On a note for the payment of a certain sum on a specified day, with interest from the date, if not punctually paid, interest from date was recoverable in case of default. [1 Blackf. 1,9.]

Interest on money had and received without the owner's knowledge, is recoverable. [ 4 Blackf. 41.]

« FöregåendeFortsätt »