WVC 38 -
CHAPTER 38. LIENS.
WVC 38 - 6 -
ARTICLE 6. INDEMNIFYING, SUSPENDING AND FORTHCOMING BONDS; TRIAL
OF CONFLICTING CLAIMS TO PROPERTY IN CASE OF LEVY OF
WVC 38 - 6 - 1
§38-6-1. Bond to indemnify officer making levy.
If any officer levy or is required to levy an execution or a
warrant of distress on property, and a doubt shall arise whether
such property is liable to such levy, he may give to the
plaintiff, his agent, or attorney at law, notice that an
indemnifying bond is required in the case. Bond may thereupon be
given by any person, with good security, payable to the officer,
in a penalty equal to double the value of the property,
conditioned to indemnify him against all damages which he may
sustain in consequence of the seizure or sale of such property,
and to pay to any claimant of such property all damages which he
may sustain in consequence of such seizure or sale.
WVC 38 - 6 - 2
§38-6-2. Effect of giving, or of refusal to give, bond; return of
bond to clerk's office.
If such bond be not given within a reasonable time after
such notice, the officer may refuse to levy on such property, or
may, if he has already levied, restore it to the person from
whose possession it was taken, as the case may be. If, where
there has been no levy, the bond be given within a reasonable
time, or, after a levy, the bond be given before the property is
restored, it shall be returned within twenty days to the clerk's
office of the circuit court of the county in which such property
may be, and the claimant or purchaser of such property shall,
after such bond is so returned, be barred of any action against
the officer levying thereon, provided the security therein be
good at the time of taking it. After such bond has been given as
herein provided, the officer shall proceed to levy, if he has not
already done so, or, if the levy has been released, he shall
proceed to levy again.
WVC 38 - 6 - 3
§38-6-3. Suspending bond; settling claimant's title; how suits on
But the sale of any such property shall be suspended at the
instance of any claimant thereof, who shall deliver to the
officer bond with good security in a penalty equal to double the
value thereof, payable to such officer, conditioned to pay to all
persons who may be injured by suspending the sale thereof, until
the claim thereto can be adjusted, such damages as they may
sustain by such suspension. If the property claimed to be liable
by virtue of the process aforesaid is in the possession of any of
the parties against whom such process was issued, but is claimed
by any other person or persons, the officer having such process
in his hands to be executed shall, whether an indemnifying bond
has been given or not, after notice to the claimant, or his
agent, proceed to execute the same notwithstanding such claim,
unless the claimant of such property, or someone for him, shall
give the suspending bond aforesaid, and shall, within thirty days
after such bond is given, proceed to have the title to such
property settled in accordance with the provisions of this
article. And in case such claimant or someone for him fails to
give such bond, or having given such bond fails to have such
proceedings instituted as aforesaid, to settle the title thereto,
such property shall be conclusively presumed to be the property
of the party in possession. For the purposes of this section, a
person making a claim of ownership of property on behalf of
another shall be deemed to be the latter's agent, and the notice
required by this section may be verbal or in writing. Upon any such bond as is mentioned in this or the two preceding sections,
suit may be prosecuted in the name of the officer, for the
benefit of the claimant, creditor, purchaser or other person
injured, and such damages recovered in such suit as a jury may
assess. The same may be prosecuted, and execution had, in the
name of such officer, when he is dead, in like manner as if he
WVC 38 - 6 - 4
§38-6-4. Procedure for determination of conflicting claims to
property levied on.
When property of the value of more than fifty dollars is
taken under a warrant of distress, or when property of any value
is taken under an execution issued by the clerk of a court, and
any person, other than the party against whom the process issued,
claims such property, or the proceeds or value thereof, the
circuit court of the county in which the property is taken, or
the judge thereof in vacation, upon the application of the
officer, where no indemnifying bond has been given, or if one has
been given, on the application of the person who claims such
property and has given such suspending bond as is mentioned in
the next preceding section, may cause to appear before such
court, as well the party issuing such process, as the party
making such claim; and such court may exercise, for the decision
of their rights, all or any of the powers and authority
prescribed in section one, article ten, chapter fifty-six of this
code. Such court on the application of the party issuing such
process may cause to appear before it the party making such
claim, and may exercise the like power and authority.
WVC 38 - 6 - 5
§38-6-5. Order of sale pending determination of rights.
In such case as is mentioned in the preceding section, the
court, or the judge thereof in vacation, where no bond is given
for the forthcoming of the property, may, before a decision of
the rights of the parties, make an order for the sale of the
property or any part thereof, on such terms as the court or judge
may deem advisable, and for the proper applicable of the proceeds
according to such rights.
WVC 38 - 6 - 6
§38-6-6. Disposition of surplus proceeds.
When property, the sale of which is indemnified, sells for
more than enough to satisfy the execution or distress warrant
under which it is taken, the surplus shall be paid by the officer
into the court to the office whereof the indemnifying bond is
required to be returned, or as such court may direct. Such court
may make such order for the disposition thereof, either
temporarily until the question as to the title of the property
sold is determined, or absolutely, as in respect to the rights of
those interested may seem to it proper.
WVC 38 - 6 - 7
§38-6-7. Forthcoming bonds.
The sheriff or other officer levying a writ of fieri facias
or distress warrant on property of the debtor, or on property the
sale of which is suspended at the instance of a claimant thereof,
may take from such debtor, or from such claimant, as the case may
be, if such claimant desires the property to remain in such
possession as it was in immediately before the levy, and the case
be one in which a bond for the forthcoming of the property is not
prohibited by section fourteen of this article, a bond with
sufficient security, payable to the creditor, in a penalty not
more than double the value of the property levied upon as
ascertained and fixed by such officer, reciting the service of
such writ or warrant, describing the property, specifying its
true value, with the condition that the property be forthcoming
at the day and place of sale than or thereafter to be appointed.
Whereupon such property shall, except as provided in the
following section, be permitted to remain in the possession of
the debtor or in such possession as it was in immediately before
the levy, as the case may be, and in either case at the risk of
such debtor or claimant.
WVC 38 - 6 - 8
§38-6-8. Sale of perishable property or property expensive to
Notwithstanding such forthcoming bond as is mentioned in the
preceding section be given, if such property be expensive to keep
or perishable, the court in which proceedings in the case under
section four of this article are pending or may be had, or the
judge thereof in vacation, may, before a decision of the rights
of the parties under such proceedings, on the application of such
claimant or of the surety in such suspending or forthcoming bond,
after reasonable notice of the intended application has been
given by such claimant or the surety to the other parties in the
case, order a sale of the property, or any part thereof, on such
terms as the court or judge may deem advisable; and the court
shall apply the proceeds according to such rights when
WVC 38 - 6 - 9
§38-6-9. Levy on additional property.
If the property levied upon as aforesaid be not sufficient
to pay the plaintiff's debt, interest and costs, and the fees and
commissions of the officer, the execution or warrant, while in
force, may be levied upon other property, if any be found, or a
new execution may be sued out, upon the return of the former, for
the residue of the debt, interest and costs. But such execution
shall not be levied upon the property mentioned in the
forthcoming bond without the consent of the persons liable
WVC 38 - 6 - 10
§38-6-10. Enforcement of forthcoming bond.
If the property, or any of it, mentioned in the forthcoming
bond be not delivered as therein provided, the officer, unless
payment be made of the amount due on the execution or warrant,
including his fees and commissions, shall forthwith return such
bond to the clerk's office from which the execution issued, or if
it be a distress warrant, to the clerk's office of the circuit
court of the county in which such warrant was issued. The clerk
shall indorse on the bond the date of its return; and, against
such of the persons who signed the same as may be alive when it
is so returned, it shall have the force of a judgment. But no
execution shall issue thereon under this section.
WVC 38 - 6 - 11
§38-6-11. Action or motion on forthcoming bond; enforcement of
The person signing such forfeited forthcoming bond shall be
liable for the true value of the property therein mentioned, and
not delivered as aforesaid, with interest on such value from the
date of the bond, and costs incurred in proceedings upon the
bond. And the obligee in such bond, or his assignee or personal
representative, may recover such sum and interest, or so much
thereof as may be necessary to satisfy his demand against the
defendant in the execution or warrant with costs, by action or
motion against the persons signing such bond. And in case such
obligee fail for any cause to recover a judgment on such bond, or
to collect the amount specified in any such judgment, or any part
thereof, he may proceed against the defendant in the original
judgment for the amount remaining unpaid, in the same manner as
if such bond had not been given.
WVC 38 - 6 - 12
§38-6-12. Defenses to bond taken under distress warrant.
In an action or motion on such bond, when it is taken under
a distress warrant, the defendants may make defense on the ground
that the distress was for rent not due in whole or in part, or
was otherwise illegal.
WVC 38 - 6 - 13
§38-6-13. Remedies on quashing of forthcoming bond.
If any such forthcoming bond be at any time quashed, the
obligee, besides his remedy against the officer, may have such
execution on his judgment or issue such distress warrant as would
have been lawful if such bond had not been taken.
WVC 38 - 6 - 14
§38-6-14. Forthcoming bonds forbidden in certain cases.
No bond for the delivery of property shall be taken on an
execution on a forthcoming bond, nor on an execution on a
judgment against a sheriff or other officer, or a deputy of such
sheriff, for money received by any such officer or deputy, by
virtue of his office, or against any such officer or his personal
representative, in favor of a surety of such officer, or against
such deputy of any such officer or his surety or personal
representative, in favor of his principal or the personal
representative of such principal, for money paid or a judgment
rendered for a default in office; nor on an execution against an
overseer of the poor, or his personal representative, or a
justice or constable for money received by him as such, nor on
any other execution on which the clerk is required by law to
indorse that no forthcoming bond is to be taken.
WVC 38 - 6 - 15
§38-6-15. Indorsement on execution forbidding forthcoming bond.
On every execution on which such bond is prohibited from
being given, the indorsement "no forthcoming bond is to be taken"
shall be made by the clerk.
WVC 38 - 6 - 16
In any case mentioned in this article, the court may make
all such rules and orders and enter such judgment as to costs and
all other matters, as may be just and proper.