ing of an execution in the hands of an officer, and the giving of a bond for the delivery of property on

execution, shall neither nor all operate as a satisfac- But not to sation of the original judgment, upon which such pro- tisfy judgment, ceedings shall or may be had, so as to extinguish the lien. lien created by such original judgment upon the

estate of any defendant.

tate of testa

SEC. 16. That no real estate, of any testator or in- Proceedings in testate, shall be subject to execution upon any judg- executions ment against the executor or administrator of such against the estestator or intestate until the devisees of such testa- tors and intestor and the terretenants of such real estate be first tates. made parties to such judgment in the following manner, to wit: where any judgment shall be obtained against any executor or administrator to be levied of the goods and chattels of the deceased and execution issued thereon, shall remain unsatisfied in whole or part, for want of personal estate and there is real estate in this Territory, it shall be lawful for the plaintiff in such judgment to file in the proper court where such judgment is obtained, a petition against the executors or administrators and heirs and devisees if any of the deceased, setting forth the facts of the judgments, and the want of personal property, and that there is real estate in the Territory of Iowa, describing the same, and setting forth in what county or counties the same is situated, and praying said court to award the proper writ, or writs, of execution against the same, and the clerk of said court shall upon filing such petition notify the persons Notice to heirs against whom it is filed of the pendency thereof, re- and devisees. quiring them to appear, on the first day of the next term of said court, and shew cause, if any they can, why the proper writ or writs of execution shall not be awarded; which said notice shall be given to residents by summons served by the proper officer, and to non-residents by publishing the same in the nearest newspaper for four weeks successively, and if a summons it shall be served on residents ten days be- Residents and fore the sitting of the court and be published to non-residents. non-residents as aforesaid, the court shall at the first term award the proper writ or writs of execution directed to the proper officer of the proper county, unless good cause to the contrary be shown, and the nonage of heirs, or devisees, shall not in any case be good cause to suspend execution.

SEC. 17. That when default or defaults shall be Proceedines on made or suffered by any mortgager or mortgagers the sale of

tates.

Equity of re

mortgaged es of land, tenements, or hereditaments, or by his, her or their heirs, devisees, executors, administrators or assigns, of, or in the payment of the mortgage money, or performance of the condition, or conditions, which they, or any of them should have paid, or performed, or ought to pay or perform, in such manner and form and according to the tenor, purport and effect of the respective provisions, conditions, or covenants, comprised in the deeds of mortgage, or defeasance, and at the days, times and places in the same deeds respectively mentioned and contained, in any purchase it shall and may be lawful for the mortgagee, or mortgagees who may hold the said deed or defeasance, his, her, or their heirs, administrators or assigns, at any time after the expiration of the last day whereon the said mortgage money ought to be paid, or other conditions performed as aforesaid, to file his, her, or their bill in the proper district court, according to the course of the common law, praying such court to foreclose the equity of redemption, of the mortgager, or mortgagers to such mortgaged premises, and the said court having jurisdiction thereof shall demption fore make such equitable decree in the premises between the parties as may be right and just, and the said mortgaged premises if ordered to be sold by such court shall be sold, as other lands are sold, on other execution to the highest bidder at public vendue, and the sheriff selling the same shall make a proper deed of conveyance to the purchaser or purchasers thereof, as in case of other land sold on execution, and when such lands, tenements and hereditaments shall be sold as aforesaid, the person or persons to whom the same may be sold shall and may hold and enjoy the same with their appurtenances, and such estate or estates shall be discharged from all equity and benefit of redemption, and all other incumbrances made and suffered by the mortgager or mortgagers, his, her or their heirs and assigns, and such sales shall be available in law and the respective vendees, mortgagees and creditors, their heirs and assigns, shall hold and enjoy the same; but beNotice of sale, fore such sale be made notice thereof shall be given in manner and form hereinbefore prescribed, concerning the sale of lands upon execution.

closed by decree of district court.

Overplus to be

SEC. 18. That whenever any goods, chattels, lands, returned to de- tenements or hereditaments shall be sold on execufendant. tion by virtue of any of the provisions of this act, and the same will sell for more than will satisfy such

execution the interest and costs accruing thereon, the sheriff or other officer making sale of the same shall render the overplus to the defendant or defendants, and then, and not till then, shall such officer be discharged thereof upon the records of the same court to which he shall make return of his proceedings concerning such sales.

passes thereby.

SEC. 19. That no sale of property on execution by Sales under virtue of the seventeenth section of this act shall be sec. 17, and what interest construed to create any further term or estate in the vendees, mortgagees or creditors to whom the same may be sold, or delivered, than the estate so sold and delivered shall appear to have been sold or mortgaged for, by the said respective mortgages or defeasible deeds.

ror, not to af

SEC. 20. That if any estate shall be sold upon exe-Judgments recution, issued under and in accordance with the versed for erprovisions of this act, upon any judgment or decree fect the sale of rendered by a court having jurisdiction of the matter estate. of controversy, which may have resulted in such judgment and such judgment or decree shall be afterwards reversed for error or errors none of such estate so sold on execution shall be restored in con. sequence of such reversal.

each other.

SEC. 21. That when mutual judgments are existing Mutual judg in any county of this Territory that it shall be the ments may be duty of the officer or officers in whose hands the exe- set off against ecution may be to set off one execution or judgment against the other, so far as the same shall extend and executions may be certified from one county to another for the purpose of allowing such set offs; and it shall be the duty of the officers when any such executions shall come to their hands to allow the

same.

SEC. 22. The innocent purchaser shall be entitled Remedy of into his suit against the judgment creditor either in law nocent puror equity for the recovery of the money paid for

such estate.

chaser.

SEC. 23. This act to be in force from and after the This act, when first day of May next.

APPROVED, January 25, 1839.

to take effect.

Ferry at Du

Buque chartered for twenty

years,

Proviso.

No court, &c.,

to authorize a ferry to be kept

Conditions of the grant.

FERRIES.

AN ACT to authorize Timothy Fanning to establish and keep a Ferry across the Mississippi river, at the town of Du Buque.

SEC. 1. Be it enacted by the Council and House of Representatives of the Territory of Iowa, That Timothy Fanning, his heirs and assigns, be and they are hereby authorized to establish and keep a ferry across the Mississippi river at the town of Du Buque, in the county of Du Buque, and to depart from and land at any place on the public landing of said town, which was set apart for public purposes by the act of Congress, approved 3d day of July, A. D. 1836, for the term of twenty years from the passage of this act: Provided, That said ferry, when so established, shall be subject to the same regulations, and under the same restrictions, as other ferries are, or may hereafter be, by the laws of this Territory, fixing the rate of toll, and prescribing the manner in which licensed ferries shall be kept and regulated.

SEC. 2. And be it further enacted, That no court, or board of county commissioners, shall authorize any person (unless as hereinafter provided for by this act) to keep a ferry within the limits of the town of Du Buque: Provided, That the said Timothy Fanning, his heirs or assigns, shall, within two years from the passage of this act, procure for said ferry a good and sufficient steam ferry boat, which shall be kept at said ferry for the transportation of all persons and their property across said river, without delay; and until said ferry boat shall be provided as aforesaid, the said Timothy Fanning shall keep at said ferry a good and sufficient number of flat boats, with a sufficient number of hands to work the same, for the transportation of all persons and their property across said river (when passable), without delay. Penalty for vi- And should the law regulating ferries now prescribed, olation thereof. or hereafter to be prescribed, be violated by the said Timothy Fanning, his heirs or assigns, or if no good and sufficient steam ferry boat be provided at the time required by this charter, upon proof thereof, to be made to the satisfaction of the board of county commissioners, or to the county court (as the case may be), of the county of Du Buque, the above charter, if so violated, shall be declared void, and said ferry shall thereafter be disposed of as other ferries

are under the laws regulating ferries. This act to be in force from and after its passage.

N. B. As far as this act may be construed to interfere with private rights Note by the -to vest in the county commissioners judicial powers-or to conflict with Governor. the provisions of the act of Congress referred to in the first section-I consider it will be void: in other respects valid. With this note of explanation, I give to it my assent.

APPROVED, December 14, 1838.

FERRIES.

AN ACT to authorize Joseph Williams and Charles Alexander Warfield to keep a ferry.

ty years.

SEC. 1. Be it enacted by the Council and House of Representatives of the Territory of Iowa, That Joseph Ferry at BloomWilliams and Charles Alexander Warfield, their heirs ington charand assigns, be and they are hereby authorized to tered for twenestablish and keep a ferry across the Mississippi river. at Bloomington, in Muscatine county, and for one mile above and one mile below said town, to the east bank of said river, for the term of twenty years, from and after the passage of this act: Provided, Said Conditions of Williams and Warfield shall, within two years from the grant. the passage of this act, establish and keep, or cause to be kept, a good and sufficient horse or steam ferry boat at the place aforesaid, for the safe conveyance of passengers and their property across said stream, without delay: And provided also, That said ferry, when so established, shall be subject to the same laws, and under the same restrictions, as other ferries are or may hereafter be by laws enacted, or to be enacted, in this Territory (or State as the case may be), fixing the rates of toll, and prescribing the manner in which licensed ferries are or shall be hereafter established and attended to. And should the law regulating ferries in any way be violated, and Penalty for viproof be made to the satisfaction of any court of olating the act competent jurisdiction, then the above charter, so ries. violated, shall be declared void, and said ferry shall thereafter be disposed of as other ferries are under the laws regulating ferries: Provided also, That Rights saved. nothing in this act shall be so construed as to interfere with the right that any individual may have to the lands on either side of said river. Provided, nevertheless, That the owners of said ferry, before they shall occupy and use the landing on the said river,

to regulate fer