EXECUTIONS, LEVIES, BAIL, AND THE RELIEF OF POOR DEBTORS
LEVY OF EXECUTIONS ON REAL ESTATE
Levy by Setoff
529:1 When Authorized.
All real estate, except the homestead right, may be taken on execution, and may be appraised and set off to the creditor at its just value in satisfaction of the execution and the cost of levying, except in cases where a sale of it is authorized by RSA 529:19.
Source. RS 195:1. CS 208:1. GS 218:1. GL 237:1. PS 233:1. PL 345:1. RL 401:1.
The officer levying the execution shall cause three appraisers to be appointed, one by the creditor, one by the debtor and one by himself, who shall be discreet and disinterested men, resident in the county, and shall be sworn by a justice impartially to appraise such real estate as shall be shown them as the estate of the debtor.
Source. RS 195:2. CS 208:2. GS 218:2. GL 237:2. PS 233:2. PL 345:2. RL 401:2.
529:3 Neglect to Appoint.
If the debtor, on due notice, neglects to appoint an appraiser, or does not reside in the county or within twenty miles of the property to be appraised, the officer shall appoint an appraiser for him.
Source. RS 195:3. CS 208:3. GS 218:3. GL 237:3. PS 233:3. PL 345:3. RL 401:3.
529:4 Notice to Appoint.
Notice given to the clerk, treasurer, agent or one of the directors of a corporation to choose an appraiser for the corporation, ten days before the levy, shall be legal notice to the corporation.
Source. RS 195:4. CS 208:4. GS 218:4. GL 237:4. PS 233:4. PL 345:4. RL 401:4.
529:5 New Appraiser.
If an appraiser shall die, or for any cause cannot act or declines to act, the sheriff shall cause an appraiser to be appointed to fill the vacancy, in the same manner as he was required to proceed in causing the original appointment, and the levy may be completed as if no vacancy had occurred.
Source. GL 237:5. PS 233:6. PL 345:6. RL 401:6.
529:6 Completing Levy.
A levy begun by the appointment and swearing of one or more of the appraisers may be completed before the return day of the execution.
Source. RS 195:5. CS 208:5. GS 218:5. GL 237:5. PS 233:5. PL 345:5. RL 401:5.
The appraisers shall set off to the creditor, by metes and bounds or other distinct description, the real estate appraised by them, or so much as may be necessary in payment of the execution and costs of levying.
Source. RS 195:6. CS 208:6. GS 218:6. GL 237:6. PS 233:7. PL 345:7. RL 401:7.
529:8 Part Interest.
If such real estate is holden jointly, or in common with others, the levy shall be made upon the undivided interest of the debtor or a part thereof.
Source. RS 195:7. CS 208:7. GS 218:7. GL 237:7. PS 233:8. PL 345:8. RL 401:8.
529:9 Indivisible Property.
If such real estate cannot, in the judgment of the appraisers, be divided and set out by metes and bounds without greatly impairing the value of the whole the levy may be made upon an undivided interest therein, or by such mode of division as the nature of the property will admit.
Source. RS 195:8. CS 208:8. GS 218:8. GL 237:8. PS 233:9. PL 345:9. RL 401:9.
529:10 Description of Property.
In either of the cases aforesaid the whole of the property, of which a part is set off, shall be described by metes and bounds or other distinct description.
Source. RS 195:9. CS 208:9. GS 218:9. GL 237:9. PS 233:10. PL 345:10. RL 401:10.
529:11 Rents, etc.
If a debtor is seized of a rent or of the income of real estate a levy may be made thereon, and the appraisers may set off the same for such term as they judge sufficient to pay the judgment, interest and costs; and the sheriff shall cause the tenant to attorn and become tenant to the creditor, and, upon his refusal, shall turn him out of possession, and deliver seizin to the creditor to hold for the term of the setoff.
Source. RS 195:10. CS 208:10. GS 218:10. GL 237:10. PS 233:11. PL 345:11. RL 401:11.
529:12 Seizin; Return; Record.
The officer shall deliver seizin and possession of the property so set off to the creditor or his attorney, shall make a full return of his proceedings, and cause the execution and return to be recorded at length in the registry of deeds of the county, and to be returned to the office of the clerk of the court to which it is returnable.
Source. RS 195:11. CS 208:11. GS 218:11. GL 237:11. PS 233:12. PL 345:12. RL 401:12.
529:13 Effect of Record, etc.
Subject to the provisions of RSA 529:29, all the debtor's interest in such real estate shall pass by the levy as against all persons, if the levy is recorded as aforesaid on or before the return day of the execution; otherwise only as against the debtor and his heirs until such record is made.
Source. RS 195:12. CS 208:12. GS 218:12. GL 237:12. PS 233:13. PL 345:13. RL 401:13.
The extent shall be void if, within one year from the return day of the execution, the debtor shall pay or tender to the creditor the sum at which the real estate was set off, and all reasonable sums paid by him for taxes, insurance, repairs and improving the estate, with interest thereon from the times of levy and payments respectively, less the rents and profits received, or which might have been received, by him and with which he is justly chargeable.
Source. RS 195:13. CS 208:13. 1857, 1964:1. GS 218:13. GL 237:13. PS 233:14. PL 345:14. RL 401:14.
529:15 Excessive Levy.
Whenever the sum at which the real estate was set off is larger than it should have been by reason of an error, made without fraudulent intent, in computing the debt or damages or the taxable costs mentioned in the execution, or interest or the officer's fees in making the levy, the debtor may redeem by paying or tendering, according to the provisions of RSA 529:14, the sum justly due to the creditor after correcting such error.
Source. 1859, 2234:1. GS 218:14. GL 237:14. PS 233:15. PL 345:15. RL 401:15.
529:16 Suit for Excess.
In case of such error, if the debtor redeems by paying the sum at which the estate was set off, or if he does not redeem within a year, he may recover of the creditor the sum required to correct the error, with interest thereon from the date of the levy, in an action for money had and received.
Source. 1859, 2234:2. GS 218:15, 16. GL 237:15, 16. PS 233:16. PL 345:16. RL 401:16.
529:17 Petition for Correction.
In case of such error either party may apply by petition to the superior court to have its amount determined; and the court, after notice and hearing, shall determine it, and may issue execution therefor and for costs in favor of the debtor against the creditor.
Source. 1859, 2234:3. GS 218:17. GL 237:17. PS 233:17. PL 345:17. RL 401:17.
Upon payment of the sum erroneously included in the levy, with interest from the date of levy and the costs allowed by the court, if any, the title to the real estate under the levy shall be relieved from any defect resulting from the error.
Source. 1859, 2234:3. GS 218:18. GL 237:18. PS 233:18. PL 345:18. RL 401:18.
Levy by Sale
529:19 Equities, etc.
A right of a debtor to redeem mortgaged real estate, or to redeem any right or interest in real estate, or to receive a conveyance of real estate on performance of a contract relating thereto, and terms for years, may be taken on execution, and may be sold at auction and conveyed as herein provided.
Source. RS 196:1, 11, 12, 13. CS 209:1, 11, 12, 13. GS 219:1, 11, 12, 13. GL 238:1, 11, 12, 13. PS 233:19. PL 345:19. RL 401:19.
Notice of the time and place of sale shall be given to the debtor, or left at his abode if he resides in the state, except as provided in the following section, and a like notice shall be posted at two of the most public places in the town in which the property is situate, thirty days before the sale.
Source. RS 196:2. CS 209:2. GS 219:2. GL 238:2. PS 233:20. 1905, 16:1. PL 345:20. RL 401:20.
529:20-a Notice of Homestead Exemption.
Along with the notice required under RSA 529:20, the party in whose name the execution has issued shall provide to any person who resides or appears to reside on the real estate to be sold, the following notice by certified mail:
IF YOU OR YOUR SPOUSE OWNS AND RESIDES IN THIS PROPERTY, YOU AND/OR YOUR SPOUSE MAY BE ENTITLED TO A HOMESTEAD EXEMPTION PURSUANT TO RSA 480:1. THIS EXEMPTS $120,000 FOR A SINGLE PERSON AND $240,000 FOR A MARRIED COUPLE.
IN ORDER TO CLAIM THIS EXEMPTION, YOU MUST NOTIFY THE SHERIFF OF THE COUNTY IN WHICH THE REAL ESTATE IS SITUATED AND THE JUDGMENT CREDITOR OF THE AMOUNT OF YOUR HOMESTEAD CLAIM IN WRITING. IF YOU DO SO BEFORE THE SALE, THE SHERIFF MUST PAY YOU THE AMOUNT OF YOUR HOMESTEAD EXEMPTION BEFORE PAYING THE JUDGMENT CREDITOR FROM THE PROCEEDS OF THE SALE. IF, HOWEVER, THE JUDGMENT CREDITOR FILES A MOTION IN COURT CHALLENGING YOUR ENTITLEMENT TO OR THE AMOUNT OF THE HOMESTEAD EXEMPTION, THE SHERIFF SHALL NOT DISTRIBUTE THE PROCEEDS FROM THE SALE UNTIL FURTHER ORDER OF THE COURT.
IF YOU DO NOT NOTIFY THE SHERIFF AND THE CREDITOR OF YOUR EXEMPTION UNTIL AFTER THE SALE, THE CREDITOR NEED NOT PAY YOU THE AMOUNT OF YOUR HOMESTEAD EXEMPTION UNTIL THE EXPIRATION OF THE ONE-YEAR PERIOD DURING WHICH YOU MAY REDEEM THE PROPERTY PURSUANT TO RSA 529:26.
IF THE SHERIFF RECEIVES YOUR NOTICE OF HOMESTEAD EXEMPTION PRIOR TO THE SALE, THE SHERIFF MAY NOT SELL THE PROPERTY FOR LESS THAN THE AMOUNT OF THE CLAIMED HOMESTEAD EXEMPTION WITHOUT FURTHER ORDER OF THE COURT.
Source. 1994, 12:1, eff. Jan. 1, 1995. 2012, 31:1, eff. July 1, 2012. 2015, 57:2, eff. Jan. 1, 2016.
If the debtor does not reside in the state a copy of the notice required in RSA 529:20 shall also be published. If the debtor resides within the state but not in the county or within 20 miles of the property, the notice may be given in hand to the debtor or left at his abode, or may be published.
Source. RS 196:3. CS 209:3. GS 219:3. GL 238:3. PS 233:21. 1905, 16:2. PL 345:21. RL 401:21. RSA 529:21. 1994, 12:2, eff. Jan. 1, 1995.
529:22 Completing Levy.
The levy shall be begun by posting notices as required in RSA 529:20 and 21, and may be completed afterward, and the sale may be adjourned, not exceeding 10 days at a time nor 60 days in the whole, notice of the adjournment being posted in the same manner as notices of the sale.
Source. RS 196:4. CS 209:4. GS 219:4. GL 238:4. PS 233:22. PL 345:22. RL 401:22. RSA 529:22. 1994, 12:3, eff. Jan. 1, 1995.
The deed of the officer making the sale shall briefly state his office, the names of the parties to the action in which the execution issued, the court and term at which the judgment was rendered, the consideration paid for the right or term sold, a description of the premises conveyed and of the right of the debtor therein; and it shall contain a covenant that the officer has observed all the requirements of law by virtue of which the deed is made.
Source. RS 196:7. CS 209:7. GS 219:7. GL 238:7. PS 233:23. PL 345:23. RL 401:23.
529:24 Return; Record; Effect.
The officer shall make a full return of his proceedings, and cause the execution and return to be recorded at length in the registry of deeds of the county in which the real estate lies, and to be returned to the office of the clerk of the court to which it is returnable; and no sale of a greater interest than a term of seven years shall be valid, except against the debtor and his heirs, unless the execution and the return are so recorded.
Source. RS 196:8. CS 209:8. GS 219:8. GL 238:8. PS 233:24. PL 345:24. RL 401:24.
The proceeds of the sale shall be applied to the satisfaction of the executions issuing in the actions in which the estate was attached, in the order of the attachments, and then to the payment of any other executions in the officer's hands in the order in which they were received; and the residue, if any, shall be paid to the debtor.
Source. RS 196:9. CS 209:9. GS 219:9. GL 238:9. PS 233:25. PL 345:25. RL 401:25.
529:25-a Claims for Homestead Exemptions.
I. Notwithstanding the provisions of RSA 529:25, if prior to the sale the debtor or the debtor's spouse makes a written claim to the sheriff and the party in whose favor the execution issued, that he is entitled to a homestead exemption pursuant to RSA 480:1, the sheriff shall not sell the property for less than the amount of the homestead exemption claimed. The proceeds of the sale shall be held by the sheriff for 10 days following the sale in order to give the creditor the opportunity to challenge the homestead exemption pursuant to paragraph II. If such challenge is not filed within 10 days of the sale, the proceeds shall be distributed by first paying the amount of the homestead exemption to the debtor and applying the remainder to the satisfaction of the execution.
II. If, within 10 days following the sale, the party on whose behalf the execution issued objects to the existence or the amount of the exemptions claimed by the debtor, the creditor shall file a motion in the court issuing the execution requesting a ruling on the exemption, and the sheriff shall not distribute the proceeds until the court has issued its ruling on the motion.
III. The debtor may claim the homestead exemption by providing written notice to the creditor at any time prior to the expiration of the redemption period set forth in RSA 529:26, after which time all said claims shall be barred. Claims of exemptions which are not filed until after the sale of the property shall be paid by the creditor upon the expiration of the redemption period, unless the creditor has contested the exemption in court and the court has not issued its ruling.
IV. If the purchaser at the sale is the creditor in whose favor the execution issued, said judgment creditor shall not be required to pay to the debtor the amount of the homestead until the expiration of the redemption period set forth in RSA 529:26, or until the debtor voluntarily or involuntarily vacates the property, whichever occurs first.
V. If the payment of the full amount of the homestead is not made to the debtor or the debtor's spouse, within 10 days of the expiration of the redemption period set forth in RSA 529:26, the sale shall be void.
Source. 1994, 12:4, eff. Jan. 1, 1995.
The sale and deed made in pursuance thereof shall be void if, within one year after the sale, the debtor shall pay or tender to the purchaser the purchase money, and all reasonable sums paid by him for taxes, insurance, repairs and the redemption of mortgages upon the estate, to protect and preserve the interest purchased by him, with interest thereon from the dates of payments respectively, less the rents and profits received, or which might have been received, by him and with which he is justly chargeable.
Source. RS 196:5. CS 209:5. GS 219:5. GL 238:5. PS 233:26. PL 345:26. RL 401:26.
529:27 Other Sales.
Attachable real estate may be taken on execution and sold, as rights of redeeming mortgaged real estate are; and the debtor has the same right of redemption from such sale.
Source. 1899, 73:1. PL 345:27. RL 401:27.
Such seizure and sale shall transfer to the purchaser all the right, title and interest that the execution debtor had in such real estate as in other cases, subject to the debtor's right of redemption.
Source. 1899, 73:1. PL 345:28. RL 401:28.
Lien Upon Real Estate Not Attached
529:29 Filing with Register.
No lien upon or right in real estate, upon which there is no existing lien by virtue of an attachment, made in the action in which the execution issued, shall be acquired as against subsequent purchasers or attaching creditors without notice, by the levy of an execution upon it, or by the beginning of such levy, until the officer making the levy shall leave with the register of deeds for the county an attested copy of the execution, with a return thereon that he has begun such levy and of the steps already taken, or a record of the completed levy has been made in the registry of deeds as required by law.
Source. PS 233:27. 1913, 30:1. PL 345:29. RL 401:29.
529:30 Register's Duty.
I. The register of deeds shall certify upon each copy the time when it was received, and may keep it on file or record it as provided in paragraph II. The register of deeds shall also enter a record of it upon the index, as in the case of attachments of real estate with the exception that the record shall state that the writ is a writ of execution.
II. The register of deeds may cause the originals of copies filed under paragraph I to be photographed and preserved on microfilm or optical disk or both, in addition to or in lieu of other recording methods.
Source. PS 233:28. 1913, 30:2. PL 345:30. RL 401:30. 1997, 203:2, eff. Jan. 1, 1998.
In all counties, the officers so making a levy shall pay to the register of deeds the fees prescribed in RSA 478:17-g and shall be entitled to the same fees for travel and copy as in case of an attachment of real estate, all of which shall be returned upon the execution.
Source. PS 233:29. 1913, 30:3. PL 345:31. RL 401:31. RSA 529:31. 1965, 377:4. 1977, 89:7. 1983, 262:10, eff. Aug. 17, 1983.
529:32 Redemption, Suit for Profits.
The debtor may redeem without claiming a reduction on account of the rents and profits of the estate received by the creditor or purchaser; and in such case the debtor may recover such rents and profits of the creditor or purchaser, in an action of assumpsit for use and occupation.
Source. RS 196:10. CS 209:10. 1857, 1964:2. GS 218:10; 219:10. GL 237:20; 238:10. PS 233:30. PL 345:32. RL 401:32.
529:33 Redemption, Release.
The creditor or purchaser, upon payment or tender to him of the amount to be paid for redeeming the estate set off or sold to him, and a reasonable sum for making and executing the release, shall execute a release to the debtor of all right acquired by the setoff or sale.
Source. RS 195:14; 196:6. CS 208:14; 209:6. GS 218:21; 219:6. GL 237:21; 238:6. PS 233:31. PL 345:33. RL 401:33.
529:34 Redemption, Petition for Account.
If the parties do not agree as to the amount to be paid to redeem real estate from a levy, like proceedings may be had for determining the amount as are provided for determining the amount due upon a mortgage on petition of the mortgagor.
Source. 1857, 1964:2. GS 218:19. GL 237:19. PS 233:32. PL 345:34. RL 401:34.
529:35 Rights of Purchaser, etc.
The person having the estate or right of the creditor, purchaser or debtor in real estate taken in execution shall be deemed to be, and shall have the rights, privileges and remedies of, the creditor, purchaser or debtor, as to all persons having notice of his right; and no act done by or to the original creditor, purchaser or debtor shall thenceforth be of any validity.
Source. RS 196:14. CS 209:14. GS 219:14. GL 238:14. PS 233:33. PL 345:35. RL 401:35.