71-3-1203. Enforcement of lien -- sale.
71-3-1203. Enforcement of lien -- sale. If payment for work, labor, or services performed or feed or material furnished is not made within 30 days after the performance of the work, labor, or services or furnishing of the feed or material, the person entitled to a lien under the provisions of this part may enforce the lien in the following manner:
(1) The person shall deliver to the sheriff or a constable of the county in which the property is located an affidavit of the amount of the person's claim against the property, a description of the property, and the name of the owner of the property or of the person at whose request the work, labor, or services were performed or the feed or material was furnished.
(2) Upon receipt of the affidavit, the sheriff or constable shall proceed to advertise and sell at public auction as much of the property covered by the lien as will satisfy the lien.
(3) The sale must be advertised, conducted, and held in the same manner as prescribed in 25-13-701(1)(b).
(4) Before the sheriff or constable sells the property at public auction, the sheriff or constable shall give notice of the sale to the owner or person at whose request the work, labor, or services were performed or the feed or material was furnished.
(a) Notice to the owner must be given at least 10 days before the sale.
(b) The notice must state:
(i) the time and place of the sale;
(ii) the amount of the claim against the property;
(iii) a description of the property;
(iv) the name of the owner or person who contracted for the services or materials; and
(v) the name of the person claiming the lien.
(c) The notice may be given by personal service or by mailing by certified mail a copy of the notice to the last-known post-office address of the owner or person who contracted for the work, labor, or services performed or the feed or material furnished.
(d) If the sheriff or constable is not able to effect personal service or service by mail because the location and mailing address of the owner or the contracting person are unknown, the sheriff or constable may give notice by posting notice of the sale in three public places in the county in which the property is located.
(5) The sheriff shall apply the proceeds of the sale to the discharge of the lien and the cost of the proceedings in selling the property and enforcing the lien, and the remainder, if any, or a part that is required to discharge the claims, must be turned over by the sheriff to the holders, in the order of their precedence, of the chattel mortgages or other lien claimants of record against the property, and the balance of the proceeds must be turned over to the owner of the property.
(6) However, before seizing any property under the provisions of this section, the sheriff may require an indemnity bond from the lienor that may not exceed double the amount of the claim against the property. The bond and the surety or sureties on the bond must be approved by the sheriff.
History: En. Sec. 3, Ch. 117, L. 1921; re-en. Sec. 8385, R.C.M. 1921; amd. Sec. 1, Ch. 130, L. 1927; re-en. Sec. 8385, R.C.M. 1935; R.C.M. 1947, 45-1108; amd. Sec. 1, Ch. 87, L. 1987; amd. Sec. 10, Ch. 88, L. 1987; amd. Sec. 2296, Ch. 56, L. 2009.