The judgment creditor in execution may elect on what property he will have the same levied except the land on which the judgment debtor resides, which shall be last taken in execution, excepting and reserving, however, to the judgment debtor in execution such property as is, or may be, by law exempted from execution.
Source: R.S. p. 372, § 9. G.L. § 1415. G.S. § 1847. R.S. 08: § 3608. C.L. § 5897. CSA: C. 93, § 1. CRS 53: § 77-1-1. C.R.S. 1963: § 77-1-1. L. 90: Entire section amended, p. 1839, § 15, effective May 31.
ANNOTATION
Law reviews. For article, "Trusts and Estates", see 30 Dicta 435 (1953). For article, "Election to Sue on a Mortgage Note in Lieu of Foreclosure", which discusses executions on homestead property, see 13 Colo. Law. 621 (1984).
Debtor should be able to designate property to be taken in place of his residence. In case of the levy of an execution on land on which the debtor resides, without giving him an opportunity, when practicable, to designate other property of his sufficient to satisfy the writ, the levy ought to be set aside, upon a timely application by the debtor, accompanied with a satisfactory showing of other property, subject to levy, sufficient to satisfy the execution. Victor Inv. Co. v. Roerig, 22 Colo. App. 257, 124 P. 349 (1912).
Attorney should give directions to officer making levy. The attorney controlling an execution owes to his client the duty to give the officer to whom the writ is committed proper directions. But even where a levy upon the lands where the execution defendant is residing is contemplated, such attorney is under no duty to the defendant to notify him of the intended levy. Victor Inv. Co. v. Roerig, 22 Colo. App. 257, 124 P. 349 (1912).
Officer need not notify debtor that a levy on his realty is to be made. No decided case has been brought to our notice in which it was held that a failure of the officer to notify the defendant in the execution, before levying upon his real estate, would authorize a court of equity to set aside the sheriff's sale and deed, after the expiration of the statutory period of redemption. Victor Inv. Co. v. Roerig, 22 Colo. App. 257, 124 P. 349 (1912).