Request By:
Mr. Martin W. Johnson
Marshall County Attorney
Courthouse, P.O. Box 172
Benton, Kentucky 42025
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your inquiry is directed toward the sheriff's duties and responsibilities upon a levy of execution on personal property.
OAG 79-80, copy enclosed, goes into detail as to the sheriff's specific duties in dealing with a writ of execution delivered to him.
You raise certain specific questions. Question (a) reads:
"May a Sheriff require a bond to assure payment of any cost he may incur by reason of his acting upon an execution that he has been issued?"
According to your letter, the sheriff recently in working under an execution sold certain personal property. However, the proceeds of the sale were insufficient to pay the advertising and storage costs.
We enclose a copy of OAG 83-312, which dealt specifically with the matter of an indemnity bond. In that opinion we pointed out that there is no effective statute providing for an indemnity bond guaranteeing the sheriff against monetary loss occasioned by the seizure and sale of property upon execution.
On the specific matter of a bond covering the sheriff as to advertising and storage costs borne by him and which costs could not be recovered out of the sale proceeds, we are not aware of any statute providing for such bond. It would appear that the sheriff has a claim against the judgment plaintiff requiring execution for such costs not recoverable out of the proceeds of sale. See 30 Am.Jur.2d, Executions, § 520, pages 743-744.
Question (b) reads:
"If the execution is on all personal property of the named defendant, does a Sheriff have the duty to physically locate same within his county and if so is he responsible for execution on personalty that may be exempt from execution by statute?"
The sheriff is not required to go out of his county to return an execution in a civil case. KRS 426.090. It is the sheriff's duty to levy on just that personal property which is sufficient to satisfy the execution. See KRS 426.130 and 426.140. The defendant may select the property to be sold under certain conditions. See KRS 426.150, 426.210; and
Geohegan v. Ditto, 59 Ky. (2 Metc.) 433, 74 Am. Dec. 413 (1859). See KRS 426.160 as to the time and place of sale of personalty. Also see
Hood v. Pope, 233 Ky. 749, 26 S.W.2d 1043 (1930). Exemptions as to personal property are found in KRS 427.010, 427.030, and 427.040. As county attorney you can advise the sheriff as to proper application of the exemption law.
Question (c) reads:
"If the execution is on personalty and subject to prior liens claims, does a Sheriff have the duty to ascertain the existence of such claims and advise the existence of such claims and advise any potential purchasers at the sale of the same?"
Under the provisions of KRS 427.010(4), a prior lien on personal property of the defendant granted voluntarily by defendant is not subject to exemption from execution. However, the sheriff would have a duty to ascertain the existence of prior liens of record in his county and so advise potential purchasers at the sale. KRS 426.290 expressly provides that if the defendant in an execution owns the legal title to any real or personal property on which a bona fide encumbrance created prior to the execution lien exists, the interest of the defendant in the property may be levied on and sold, subject to the encumbrance. See that statute for other details. See