Chapter 8-6 Sequestration

• Jurisdiction: United States

8-6 Sequestration

8-6:1 Overview

Sequestration is a statutorily created remedy that has no basis in the common law. The remedy is purely ancillary, in that there must be an underlying lawsuit pending in order for a court to issue a writ of sequestration. Sequestration is generally only available to secured creditors, but certain other claimants or unsecured creditors may pursue sequestration as well. As a summary proceeding, a plaintiff seeking to obtain a writ of sequestration must strictly comply with the statutes and rules governing the remedy. Such a writ may only be issued after a suit is filed but before judgment is rendered. Once the plaintiff has obtained a writ of sequestration, the sheriff or constable takes possession of the property to preserve it pending the outcome of the underlying litigation.

8-6:1.1 Related Causes of Action

Garnishment, Attachment, Receivership, Injunction: Temporary

8-6:2 Elements

(1) The underlying lawsuit is for title to real property

• The underlying lawsuit is:

• For title to real property.¹⁷⁹

(2) Specific grounds for sequestration exist.

• Specific grounds for sequestration exist:
• The plaintiff has previously been ejected from the property by force or violence;¹⁸⁰
• A reasonable conclusion may be drawn that there is immediate danger that the defendant or the party in possession of the property will conceal, dispose of, ill-treat, waste, or destroy the property or remove it from the county during the suit;¹⁸¹ or
• A reasonable conclusion may be drawn that there is immediate danger that the defendant or the party in possession of the property will use his possession to injure or ill-treat the property or waste or convert to his own use the timber, rents, fruits or revenue of the property.¹⁸²

Or

(1) The underlying lawsuit is for possession of real property or fixtures or foreclosure or enforcement of a mortgage or lien on real property.

• The underlying lawsuit is:

• For possession of real property or fixtures;¹⁸³ or
• For foreclosure or enforcement of a mortgage or lien on real property.¹⁸⁴

(2) Specific grounds for sequestration exist.

• Specific grounds for sequestration exist:

• A reasonable conclusion may be drawn that there is immediate danger that the defendant or the party in possession of the property will use his possession to injure or ill-treat the property or waste or convert to his own use the timber, rents, fruits or revenue of the property.

Or

(1) The underlying lawsuit is for foreclosure or enforcement of a mortgage, lien or security interest on personal property or fixtures

• The underlying lawsuit is

• For foreclosure or enforcement of a mortgage, lien or security interest on personal property or fixtures.¹⁸⁵

(2) Specific grounds for sequestration exist

• Specific grounds for sequestration exist:

• A reasonable conclusion may be drawn that there is immediate danger that the defendant or the party in possession of the property will conceal, dispose of, ill-treat, waste, or destroy the property or remove it from the county during the suit.¹⁸⁶

Or

(1) The underlying lawsuit is to try title to real property, to remove a cloud from the title of real property, to foreclose a lien on real property, or to partition real property

• The underlying lawsuit is:

• To try title to real property;¹⁸⁷
• To remove a cloud from the title of real property;¹⁸⁸
• To foreclose a lien on real property;¹⁸⁹ or
• To partition real property.¹⁹⁰

(2) Specific grounds for sequestration exist

• Specific grounds for sequestration exist:
• The plaintiff makes an oath that one or more of the defendants is a nonresident of this state.¹⁹¹

8-6:3 Damages and Remedies

8-6:3.1 Issuance of the Writ

The plaintiff may obtain a writ of sequestration from a district or county court judge or a justice of the peace.¹⁹²

The writ of sequestration must:

• Prominently display a statement of the defendant's rights;¹⁹³
• A description of the property to be sequestered;¹⁹⁴ and
• The value of the property to be sequestered.¹⁹⁵

8-6:3.2 Levy upon the Writ

The sheriff or constable must be required to take possession of the property to be sequestered.¹⁹⁶

8-6:3.3 Sale of Perishable Personal Property

Either the plaintiff or defendant may compel the sale of perishable goods likely to be wasted, destroyed, or depreciated if:

• 10 days have elapsed from the levy upon the writ of sequestration;
• Either party makes an affidavit in writing that the property levied upon, or any portion thereof, is likely to be wasted or destroyed or greatly depreciated in value by keeping; and
• The sheriff or constable certifies the truth of the party's affidavit.¹⁹⁷

8-6:3.4 Plaintiff May Reply

The plaintiff may replevy the property from the sheriff or constable's possession if:

• 10 days have elapsed since the levy upon the writ of sequestration; and
• The plaintiff executes a bond payable to the defendant.¹⁹⁸

8-6:4 Defenses

8-6:4.1 Defendant's Replevy Bond

If the defendant loses the underlying lawsuit, final judgment shall include a provision holding the defendant and sureties jointly and severally liable for the value of the property as of the date of the bond's execution, plus the value of the property's fruits, hire, revenue or rent.¹⁹⁹

8-6:4.2 Failure to Strictly Comply...