WVC 38 -
CHAPTER 38. LIENS.
WVC 38 - 4 -
ARTICLE 4. EXECUTIONS.
WVC 38 - 4 - 1
§38-4-1. Executions against corporations.
Against a corporation such execution may issue as against a
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§38-4-2. Executions on joint judgments.
Where a judgment is against several persons jointly,
executions thereon shall be joint against them all.
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§38-4-3. Execution for benefit of person other than plaintiff.
Where an execution issues on a judgment for the benefit, in
whole or in part, of any person other than the plaintiff, if that
fact appear by the record, the clerk shall, in the execution or
an indorsement thereon, state the extent of the interest therein
of such persons, and such person may, as a party injured, either
in his own name or that of the plaintiff, prosecute a suit or
motion against the officer.
WVC 38 - 4 - 4
§38-4-4. Writs of possession and fieri facias on judgments for
On a judgment for the recovery of specific property, real or
personal, a writ of possession may issue for the specific
property, which writ shall conform to the judgment as to the
description of the property, and the estate, title, or interest
recovered. On such a judgment a writ of fieri facias or
execution may also be issued for the damages or profits and
WVC 38 - 4 - 5
§38-4-5. Execution or fieri facias on money judgment.
On a judgment for money, there may be issued an execution
known as a writ of fieri facias.
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§38-4-6. On what fieri facias may be levied.
By a writ of fieri facias, the officer shall be commanded to
make the money therein mentioned out of the personal property of
the person against whom the judgment is. The writ may be levied
upon goods and chattels, current money and bank notes, stamps,
certificates of stock in a corporation, negotiable warehouse
receipts, negotiable instruments, or any other negotiable
evidences of indebtedness calling for a liquidated sum of money,
belonging to the person against whom the judgment is.
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§38-4-7. How currency or bank notes shall be accounted for.
If the levy be upon gold or silver coin or other currency
which is legal tender in the United States, the same shall be
accounted for at its par value as so much money made under the
execution. If it be upon bank notes or currency which are not
legal tender in the United States, and the creditor will not take
them at their nominal value, they shall be sold and accounted for
as any other property taken under execution.
WVC 38 - 4 - 8
§38-4-8. Commencement and duration of lien of fieri facias.
A writ of fieri facias or execution shall create a lien,
from the time it is delivered to the sheriff or other officer to
be executed, upon all of the personal property, or the estate or
interest therein, owned by the judgment debtor at the time of
such delivery of the writ, or which he may acquire on or before
the return day thereof, although such property was not levied on
or capable of being levied on under the provisions of section six
of this article. Such lien shall continue beyond the return day
of the execution, whether the writ was levied or not, but shall
cease whenever the right of the judgment creditor to levy the
writ under which such lien arose, or to levy a new writ, ceases,
under the provisions of section eighteen, article three of this
chapter, or when such right is suspended by a forthcoming bond
being given or forfeited, or by an appeal or otherwise. The lien
created by this section shall be subject to the provisions of
sections nine and ten of this article.
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§38-4-9. Purchaser for value and without notice before levy takes
free of lien; payment or delivery to debtor without
notice is without liability.
The lien of a writ of fieri facias shall not be good as
against a purchaser or assignee of the property subject to the
lien, for a valuable consideration and without notice of such
lien, unless, at the time of such purchase or assignment, the
writ shall have been actually levied upon the property, and the
property shall have been in the actual possession of the officer
or of some person, other than the judgment debtor, holding such
property for the officer. If the property, upon which such writ
is a lien, is a debt or liability of some third person to pay
money or deliver property to the judgment debtor, any payment or
delivery made by such third person to the judgment debtor or his
assignee, before such third person has notice of the writ, shall
be good, and such person shall be discharged, to the extent of
such payment or delivery, from any liability to the judgment
creditor: Provided, however,
That if the evidence of such debt
or liability of such third person is a writing of such a nature
that it could be levied on under the provisions of section six of
this article, and if such writing has been levied on and taken
into the possession of the officer under the writ, such levy
shall constitute notice to such third person of the lien of such
WVC 38 - 4 - 10
§38-4-10. Docketing as constructive notice.
The docketing of an execution as provided in the following
section of this article shall constitute constructive notice to
all persons, of such execution: Provided, however,
That if the
property upon which such execution is a lien be a negotiable
instrument, a holder in due course of such instrument shall hold
it free from the lien of such execution, whether such execution
be docketed or not, and if the property be a debt or liability of
a third person to the judgment debtor, whether such debt or
liability be negotiable or not, any payment made by such third
person to such judgment debtor shall discharge such third person
from all further liability, to the extent of such payment,
whether such execution be docketed or not, unless such third
person had actual notice of such execution: Provided further,
That any sale of property made by a merchant, dealer, or
manufacturer in the regular course of the business of such
person, shall pass such goods free from the lien of an execution,
whether it be docketed or not.
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§38-4-11. Docketing of execution.
The clerk of the county court of every county shall keep in
his office, in a well-bound book, an execution docket, in which
he shall docket without delay, any execution in this state, when
he shall be required so to do by any person interested, on such
person delivering to him an authenticated abstract of it, for
which he shall be entitled to the same fee as for docketing a
judgment. In such abstract and docket there shall be stated in
separate columns: (a) The full name of the plaintiff or
plaintiffs, and of the defendant or defendants, and if the
defendants are sued as partners, the name of the partnership; (b)
the amount of the execution; (c) the date of the execution; (d)
the day and hour when received by the sheriff or other officer;
(e) when returnable; (f) the date of docketing.
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§38-4-12. Exemption from execution.
Such property as a husband or parent may have listed and set
apart as exempt from distress and levy, under the provisions of
law, shall not be subject to the lien of a fieri facias.
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§38-4-13. Indorsement of time of receipt by officer; penalty for
failure to indorse.
Every officer shall indorse on each writ of fieri facias the
year, month, day, and time of day, he receives the same. If he
fail to do so, the judgment creditor may, by motion, recover
against him and his sureties, jointly and severally, in the court
in which the judgment was rendered, a sum not exceeding fifteen
percent upon the amount of the execution.
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§38-4-14. Order of levy and satisfaction of several writs.
Of writs of fieri facias, that which was first delivered to
the officer, though two or more be delivered on the same day,
shall be first levied and satisfied; and where several such
executions are delivered to the officer at the same time, they
shall be satisfied ratably.
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§38-4-15. Rules concerning distress or levy.
The officer shall in no case make an unreasonable distress
or levy. For horses or any livestock distrained or levied upon,
he shall provide sufficient sustenance while they remain in his
possession. Nothing distrained or levied upon shall be removed
by him out of his county, unless it is otherwise specially
WVC 38 - 4 - 16
§38-4-16. Officer's return upon fieri facias.
Upon a writ of fieri facias the officer shall make a return
showing whether or not the money therein mentioned has been or
can be made, or whether any part thereof, and if so, what part,
has been or can be made. With every execution under which money
is recovered, he shall return a statement of the amount received,
including his fees and other charges; and such amount, except
such fees and charges, he shall pay to the person entitled, or to
his agent or attorney.
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§38-4-17. Resale upon default of purchaser.
If at any sale by an officer, the purchaser shall not comply
with the terms of sale, the officer may resell the property,
either forthwith or under a new advertisement, or return that the
property was not sold for want of bidders. If, on a resale, the
property be sold for less than it sold for before, the first
purchaser shall be liable for the difference to the creditor, so
far as is required to satisfy him, and to the debtor for the
balance. This section shall not prevent the creditor from
proceeding as he might have done if it had not been enacted.
WVC 38 - 4 - 18
§38-4-18. Writ of venditioni exponas; notice of sale.
When it appears by the return on an execution, that property
taken to satisfy it remains unsold, a writ of venditioni exponas
may issue; whereupon the like proceedings shall be had as might
have been had on the first execution, except that if it issue
upon a return of no sale for want of bidders, or of a sufficient
bid, the notice shall state the fact, and that the sale will be
WVC 38 - 4 - 19
§38-4-19. Proceeding in case of death of officer before sale.
If an officer, taking property under execution, dies before
the sale thereof, and there be no deputies of such officer acting
in the case, a writ of venditioni exponas may, upon a suggestion
of the fact, be directed to such sheriff or other officer of the
county wherein the property was taken as may be in office at the
time the writ issues. Whereupon the officer to whom the writ is
directed shall take possession of the property previously levied
upon, whether the same be in the possession of the representative
of the deceased officer or the execution debtor, and proceed to
advertise and sell it and account for the proceeds thereof in
like manner as if the levy had been made by himself.
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§38-4-20. Time and place for sale of personal property under
distraint, levy or order of court; posting or
publishing notice; conduct and terms of sale.
In any case where an officer shall distrain or levy upon
personal property, otherwise than under an execution or order
issued by a justice, or under an attachment, and in any case in
which he may be directed to sell personal property by an order of
a court or judge, unless such order prescribes a different
course, he shall fix upon a time and place for the sale thereof,
and publish notice of such sale at least ten days by posting the
same at the door of the courthouse of his county and some other
conspicuous place near the residence of the owner, if he resides
in the county: Provided,
That any sheriff or other officer
proceeding to sell under a writ of fieri facias or venditioni
exponas, if the property be of the value of five hundred dollars
or more, shall advertise the sale as a Class II-0 legal
advertisement in compliance with the provisions of article three,
chapter fifty-nine of this code, and the publication area for
such publication shall be the county. If the property be
perishable or expensive to keep, it may be sold by order of the
court, or the judge thereof in vacation, upon such notice as the
court or judge may direct.
At the time and place so appointed the officer shall sell to
the highest bidder for cash, except as hereinafter provided in
section twenty-three of this article, such personal property, or
so much thereof as may be necessary.
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§38-4-21. Adjournment of sale.
When for any cause the sale is not completed on the day
appointed therefor it may be adjourned from day to day until it
shall be completed.
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§38-4-22. Appraisal before sale.
If, before any such sale is made, the judgment debtor, his
agent or attorney, or in their absence, his or her spouse, so
desires, the property to be sold shall be appraised by separate
items by two disinterested householders of the district in which
the levy is made, or where the debtor resides, if he resides in
the county, one to be selected by the judgment debtor, his agent
or attorney, or, in their absence, his or her spouse, and the
other by the judgment creditor, his agent or attorney, or in
their absence, by the officer in whose hands the execution, order
of sale or other process is, who, after being duly sworn for the
purpose, shall appraise, at its fair cash value, each item of
property to be sold, reduce their appraisement to writing, sign
the same and deliver it to the officer whose duty it is to make
the sale. If they do not agree as to the value of any item of
property to be sold, such officer shall, on his official oath,
act as umpire in the case and his decision and that of one of
such appraisers shall determine the value of such items. Such
appraisement shall be returned by the officer with his execution,
order of sale or other process.
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§38-4-23. Method and terms of sale of appraised property.
The property appraised under the provisions of the preceding
section shall be sold by the officer in separate items, or in
parcels, or as a whole, whichever method will secure the highest
price therefor. The property so appraised shall be first offered
for sale for cash, and, if the highest aggregate bids therefor
amount to two thirds or more of its appraised value, the sale
thereof shall be for cash; but if no bid be made therefor
aggregating two thirds of its appraised value, the same shall
then be offered for sale, one half on a credit of four months and
the residue on a credit of eight months, the purchaser giving his
note with good security bearing interest from date. If when so
offered on a credit a greater aggregate sum be bid therefor than
was offered in cash, the sale shall be made upon credit as
aforesaid, otherwise the cash bid shall be accepted.
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§38-4-24. Payments on purchase money notes.
All moneys paid to the officer, on any note taken under the
preceding section shall be regarded as so much money received by
him on the execution, order of sale, or other process under which
the sale was made, and the officer shall indorse the same on the
execution, order of sale or other process, whether the same has
been returned or not, at the time such payment is made.
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§38-4-25. Judgment on defaulted purchase money notes.
If any note so taken be not paid to the officer when due, he
shall indorse thereon any payments made to him and return it to
the office of the clerk of the court from which such execution,
order of sale or other process issued, who shall indorse thereon
the date of such return, whereupon the clerk shall, without
process or further proceedings, enter, in the law order book,
judgment in favor of the officer upon such note for the amount
remaining unpaid with interest. Such judgment shall be as final
and valid as if entered by the court, except only that the court
shall have such control of it as is given by article two, chapter
fifty-eight of this code.
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§38-4-26. Form of judgment on notes.
The judgment entered by the clerk under the provisions of
the preceding section shall be in the following form or to the
Whereas on the ......... day of ........., 19....., a
judgment (or decree or order) was rendered by the .............
court of ................ County, West Virginia, in favor of
..............., and against ..............., for the principal
sum of ............... dollars, upon which an execution was, on
the .......... day of ........, 19 ....., issued and placed in
the hands of ..............., sheriff of said county, to be
Whereas said execution has been returned showing that, by
virtue thereof, personal property of the said ...............,
was sold to ..................., at the price of ............
dollars, on a credit for four and eight months, and that said
.............. executed to the said sheriff his two interest
bearing notes dated on the ............... day of ..........., 19
....., payable as aforesaid, with ........., as surety, and
Whereas the note falling due on the ......... day of
..........., 19 ....., has, by said sheriff, been returned to
this office unsatisfied, and it appearing therefrom that the
principal and interest remaining due and unpaid amounts to
Now, therefore, in pursuance of the statute in such cases
made and provided, it is ordered that ..............., sheriff,
do recover of ............... and ..............., the sum of ........ dollars.
Given under my hand this ......... day of ............, 19
WVC 38 - 4 - 27
§38-4-27. Disposition of surplus received by officer; disposition
of money not paid over when execution stayed.
Where an officer has received money under execution, if any
surplus remain in his hands after satisfying the execution, such
surplus shall be repaid to the debtor; and if the debtor or his
personal representative obtain an injunction or appeal staying an
execution, in whole or in part, before money received under it,
or any part of it, is paid over to the creditor, the officer
shall repay such debtor the money so received and not so paid
over, or so much thereof as the injunction or appeal may extend
to, unless otherwise directed by law, or the order of the court.
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§38-4-28. Liability of officer for money received under execution
payable to nonresident of county.
No officer, receiving money under execution, when the person
to whom it is payable resides in a different county from that in
which the officer resides, shall be liable to have any judgment
rendered against him or his sureties for the nonpayment thereof,
until a demand of payment be made of such officer in his county
by such creditor or his attorney at law, or some person having a
written order from the creditor.
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§38-4-29. Successive executions.
Subject to the limitations prescribed by law, a party
obtaining an execution may sue out other executions at his own
costs, though the return day of a former execution has not
arrived; and may sue out other executions at the defendant's
costs, where, on a former execution, there is a return by which
it appears that the writ has not been executed, or that it or any
part of the amount thereof is not levied, or that property levied
on has been discharged by legal process, which does not prevent a
new execution on the judgment. In no case shall there be more
than one satisfaction for the same money or thing.
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§38-4-30. New execution when property sold is recovered from
obligor on indemnifying bond or purchaser.
When property sold under execution, or its value, is
recovered from an obligor in an indemnifying bond given before
such sale, or from a purchaser having a right of action on such
bond, the person having such judgment or execution, or his
personal representative may, by scire facias, or motion after
reasonable notice to the person or the personal representative of
the person against whom the judgment or execution was, obtain a
new execution against him in the latter case, for the amount for
which the property sold, with interest from the day of sale, and
in the other cases, for so much of the judgment as remains
unpaid. Such scire facias shall be sued out, or such motion
made, within five years after the right to sue out or make the
WVC 38 - 4 - 31
§38-4-31. Motion to quash execution.
A motion to quash an execution may, after reasonable notice
to the adverse party, be heard and decided by the court whose
clerk issued the execution, or by the judge thereof in vacation;
and such court or judge may, without such notice, make an order
staying proceedings on the execution until such motion can be
heard and determined. A copy of the order so made must be served
upon the officer in whose hands the execution is.
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§38-4-32. Limitation on motion for failure to return execution.
A motion against an officer or his sureties, or his or their
representatives, for a failure to return an execution, shall be
made within ten years from the return day thereof and not after.