Sheriff Execution III

Orders to Sheriff

The principal orders which a sheriff executes under High Court jurisdiction are the following:

• fieri facias (to seize goods in execution);
• venditioni exponas (directing a sale of goods for the best price where not sold);
• delivery;
• possession

In the Circuit Court, the sheriff or County Registrar may execute the following:

• execution order against goods;
• execution order against specific chattels;
• execution order for possession

The Enforcement of Court Orders Act 1926 modernised the office of sheriff, in the context of the newly established Irish Free State. It coincided with reforming legislation on courts and courts officers. Nonetheless, the existing law and practice in relation to sheriffs and execution largely continued in force.

Generally, one execution only may issue to recover a judgment debt; However, there is provision for the issue of one or more orders is some circumstance.  A write of fieri facias may be issued concurrently, for example, in different counties.  It does not matter which order first. The creditor may seek execution in every county in which the debtor has property available.  However, he must countermand orders, which go beyond mere seizure where he has received the payment of the relevant debt, on any one or more of the others.

Where there has been a levy under a first order, rather than a seizure, the second order should not be issued until the first has been returned.  Where there is a judgment against two or more persons jointly, the order must issue against them joint

Sheriff\’s Duties

A sheriff need not execute an order that is irregular. It must be in the correct form with the proper endorsements.

The sheriff has a duty to execute as soon as reasonably practicable.  He must execute within a reasonable time. The sheriff may be subject to an action for failure to levy or for making a false return.  A party who is prejudiced may obtain an injunction compelling him to perform his duties. proceedings.  The Sheriff\’s Act 1920 gives the court power to enforce performance of the duties of under-sheriffs.

Under a writ/order of fieri facias, the sheriff is obliged to levy execution against sufficient goods in order to fulfil the amount due under the judgment, in their sale.  The sheriff may be liable to the execution debtor and other thereby affected for damages,  for execution that is patently excessive.

Where a judgment creditor deliberately or mistakenly indicates that the judgment debtor has certain goods at a location, then he may be liable for trespass of the sheriff\’s seizure, if the goods are not those of the debtor or those other which might be lawfully seized.

Entering Property

At Common Law, a sheriff could not force his way inside a dwelling house in order to execute for a debt. He could enter if the owner left means of entrance available, without the use of any degree of force. The Enforcement of Court Orders Act, 1926 provides an immunity against legal action for undersheriffs.

The immunity provides that no action shall lie against an undersheriff for entering or breaking into any lands, house, dwellings, public or other premises for the purpose of taking in execution any goods, animals or other chattels which might be in the property.  The immunity is subject to the following conditions

• before breaking into any dwelling, he must make reasonable efforts to enter peacefully and without violence; and
• in breaking and entering the premises of a third party he must have reasonable grounds for believing that there are goods, animals or chattels of the execution debtor; or
• he must actually find some goods, animals or chattels on the premises concerned.

No action lies against an undersheriff for taking goods, animals or chattels found in the house occupied by the debtor, alleged to be the property of the debtor’s spouse or those of his parent or child who reside.  Any right of action that may thereby arise for the latter is deemed to be transferred so they arise against the execution debtor.

Fees

There is a statutory scale of fees payable when the writ is issued to the sheriff to seize goods for a debt. Sheriff\’s fees and expenses are set out in statutory instruments. Ultimately, the sums are recoverable from the debtor.  There are relatively nominal fees, as well as more market-based fees for particular services. The sheriff is not entitled to fees upon a  return of no goods.

The fees payable by the judgment debtor include the following and may be levied as part of the execution.

• poundage fee on the seizure and sale of property;
• fee for execution of an order by a court messenger;
• travelling expenses;
• the expenses of removal and storage of goods and animals;
• the expenses of the sale and for preparation for sale.

Fieri Facias

Fieri facias or an execution order against goods is a common law process/writ that directs the undersheriff or County Registrar to cause chattels of the debtor within his functional area (bailiwick), to be seized in satisfaction of a judgment. A prior demand is not required before the writ issues. A form of requisition is filed in the court offices for the issue of the writ.  The circuit court procedure for issue of an execution order is broadly similar.

A return of nulla bona involves the return of a writ of execution and signifies that the officer has made a strict and diligent search but was unable to find any property of the defendant liable to seizure under the writ, on which to make a levy. It is the completion of the execution.

Sheriffs may seize goods without physically removing them from the premises.  If the sheriff shows an intention to seize them, there may be sufficient seizure.  There must be an act indicative of an intention to take possession and control of them.

The sheriff may undertake a walking possession agreement, in which he agrees that he leaves the goods in the debtor\’s custody. It is a condition that the debtor acknowledges that the sheriff has taken possession of the goods.

An undersheriff is to take an inventory of the goods within 24 hours of seizure and if practicable, before any removal. He is to forward to the defendant, an inventory in duplicate signed by the undersheriff.

Seizable Goods

At common law, a sheriff could only seize goods belonging to the judgment debtor. He could not seize against goods already seized or distrained.

Prior to the 2009 Land Act Reforms, a sheriff could seize all leasehold interests. The 2009 Act limits the power to non-residential property. He could not seize or sell a freehold interest or an equitable interest. He had the power to seize an equitable interest, where the whole beneficial interest due to the judgment debtor. This would not be so, in the common case of mortgaged property. Such seizures are very rare in modern times.

The Common Law Procedure Act allows the sheriff to seize money, bank bills, bills of exchange, bonds, specialties and other securities for money, belonging to the person against whom the writ issues.

Assets which are held jointly or as tenants in common may be seized and sold.  The interest of the other co-owners must be paid in accordance with the nature of their interest. Where the debtor has a saleable interest in the goods, even it is not a full interest, they may be seized and the interest realised, where they are in his lawful possession.  The sheriffs may seize goods held as pledgee if the pledge becomes enforceable for the debts.

Exempt Goods

The following are exempt from seizure liability under the 1926 Act

• necessary wearing apparel,
• bedding of the debtor and his family
• tools and implements of his trade

Goods and chattels in a leased property are not liable to be taken in execution, unless the party executing pays to the landlord, any sum of money up to one year\’s rent, as is due for the time being, such sums to be sworn by the landlord.

The sheriff may sell goods at public auction after at least 48 hours has expired after execution.  The sheriff is not to allow an unreasonable delay to take place.

Sale and Title Issues

Generally, the sheriffs sell by public auction within its bailiwick.  The court may order a sale of whole or part of the goods where it is claimed that a third party has a security interest in them. This occurs pursuant to interpleader proceedings.

The execution binds the goods of the judgment debtor from the point in time of the delivery of the writ order too the officer for execution.  The time is to be endorsed on the writ or recorded.

The goods are sold is subject to all legal and equitable interests in the goods in the hands of the judgment debtor.  The sheriff  has no power to give any better title than the judgment debtor held in the goods. The seizure does not satisfy the judgment as the property remains in the debtor, until it is sold. Once a property is sold, the sheriff has authority to give the title to the goods to  the purchaser.  The interest of the judgment creditor arises in respect of the moneys received.

Where the sheriff has seized, but not sold goods, the person who seeks execution  may seek and be granted an order of venditio exponas, once the order of fieri facias has been filed.  It applies where goods remain in the possession of the sheriff because there is no available buyer. The order  writ directs the sheriff to sell at the best price obtainable and make a return for payment to the judgment creditor.

A third party who is adversely affected by execution, may have a right of action against the sheriff in respect of things done by reason of the wrongful seizure.  A judgment creditor may a be liable to a third party, if goods are wrongfully seized because he asserts to the sheriff that they belong to the judgment debtor.

Where several order for execution have been lodged, priority is  in accordance with the date of delivery to the sheriff. Where he levies, he should pay in accordance with this order of priority.

A person who purchases in good faith from a sheriff, takes good title to the goods, animals, chattels, etc.,  notwithstanding any invalidity in the seizure objective.

In strict terms, the writ of execution binds the property when it is delivered to the sheriff for execution.  The sheriff endorses the time of the receipt on the writ. However, title to goods which are acquired in good faith for valuable consideration thereafter, passes  to the transferee  before the seizure, unless such transferee  had notice that the writ or order that had been delivered to the sheriff and remained unexecuted in his hands.

The sale by the sheriff under the writ gives title to the purchaser. A person who buys in good faith under a sale by the sheriff, goods of the company on which execution has been  levied acquires good title against the liquidator.

Supevening Insolvency

Where a company is being wound up,  distress or execution in respect of its property or effects is void.  A judgment creditor may not retain the benefit of the execution unless execution or attachment has been completed before commencing of winding up. Execution is completed by seizure and sale.  Execution against land applies on completion of seizure and  in the case of an equitable interest, the appointment of a receiver.

Where a liquidator is appointed, whether  provisional or  final or where a resolution for voluntary winding up has been passed, goods and  any moneys seized or received by the sheriff in part satisfaction, which have been taken in execution but not sold must be delivered to the liquidator. The sheriff has a duty is to pay the  balance of the liquidator, if within 14 days, there is served on him notice thereof. The costs of execution are a first charge on the goods. The  liquidator may sell them to realize the same.

Upon completion of execution, the judgment creditor obtains the benefit of the execution, even though the company later goes into liquidation and the moneys remain in the hands of the sheriff.

Under the Bankruptcy Act, where goods or a leasehold interest in lands belonging to the debtor have been seized under execution order or sold, or money has been paid in satisfaction of the execution, either to the sheriff or County Registrar, in order to avoid seizure and sale under such execution, the money must be retained for 21 days.  The monies must be surrendered to the Official Assignee, if within the 21-day period, the person holding the same receives notice of the adjudication of bankruptcy. A person who  purchases in good, faith under a sale by the sheriff, acquired as good title as against the official assignee.

A return of nulla bona completes execution, even if judgment has not been satisfied.  The court may go behind the return, in order  to ascertain whether the proper levy has been attempted and executed.