5.28 Execution Sales

5.28.1

In General

An execution sale is a sale under a statutory power made by a sheriff, constable, marshall, commissioner, or other ministerial officer by authority of a writ of execution. An execution sale, if legally made and followed by a conveyance to the purchaser, vests the title of the judgment debtor in the purchaser. The sale must be made under a judgment by a court having jurisdiction of both the subject matter and the parties. Some statutes provide that the debtor may redeem the land within a certain specified time. In a few states, a judicial confirmation of an execution sale is required.

However, execution sales are not judicial sales. In the case of an execution sale, the sheriff or the sheriff's deputy sells the property by the authority of the writ, and title passes without judicial confirmation, except in few states where required by statute. In contradistinction, a judicial sale is made pursuant to an order or decree of court and must be reported to and confirmed by the court before an effective conveyance can be executed. Additionally, an execution sale is made by an officer of the law pursuant to power conferred by statute and by the writ, whereas a judicial sale is made by the court or by a direct agent of the court. Sale on general execution is a statutory method of enforcing payment of a personal judgment for money out of any nonexempt property of the debtor, while a judicial sale is based upon an order for the sale of specific property.

5.28.2

Insuring Purchasers At Execution Sales

The insurance of a purchaser at an execution sale, even when insuring a bona fide purchaser, is an extrahazardous risk, because such sales are susceptible to judicial attack on any of the following grounds:

  • Lack of validity of the judgment.
  • Lack of legal right to commence execution.
  • Improper or defective form of notice of levy.
  • Improper or defective form of notice of issuance of execution.
  • Debtors are persons entitled to exemption rights.
  • Dower, curtesy, or inchoate rights of inheritance of the debtor's spouse.
  • Real property exempt from execution.
  • Improprieties or irregularities in connection with the time, place and manner of sale.
  • Deed executed before the right of redemption has expired (if any allowed by the statutes).
  • Lack of judicial confirmation (if required by statutes).
  • Prior to the sale the judgment debtor had been judicially declared incompetent.
  • Prior to the sale the judgment debtor had become a debtor under the Bankruptcy Act provisions.
  • Intervening liens on other interests, if any, may not be extinguished by the sale due to lack of satisfactory notice to the holder of intervening liens or other interests.
  • Notice given to the owner or lienholders may not comply with due process unless personal service (as contrasted with posting or publication) has been given.

In general, execution sales not confirmed by a court of record having jurisdiction over the parties should not be insured except when long possession of the title coupled with payment of taxes has eliminated any significant risk of attack.

Please call our underwriting personnel if this requirement cannot be satisfied.