§651-95  Sale where real property cannot be divided; application of proceeds.  [(a)]  If the defendant is entitled to an exemption as provided in section 651-92, and if, from the appraiser's report, it appears to the court that the real property claimed exceeds in value the amount of the real property exemption, all liens and encumbrances recorded prior to the judgment lien under which sale is to be made and an amount equal to estimated execution costs, attorney's and appraiser's fees, and other fees, and that it cannot be divided under section 651-94, the court shall make an order directing its sale under the execution, subject to all liens and encumbrances recorded prior to the lien under which the sale is to be made.

     [(b)]  If the sale is made, the proceeds thereof shall be applied in the following order of priority:  first, to the defendant to the amount of the exemption; second, to the satisfaction of the execution costs, attorney's and appraiser's fees, and any other fees that may necessarily arise; third, to the satisfaction of the lien under which the sale is made; fourth, to the discharge of any subsequent liens and encumbrances according to their priority, and fifth, the balance, if any, to the defendant.  The sale shall operate to extinguish subsequent liens and encumbrances without forcing prior lienors and encumbrancers to exercise their right of recovery. [L 1976, c 136, pt of §1; am L 1978, c 46, §9; gen ch 1985]

Case Notes

  Mentioned:  61 H. 590, 607 P.2d 411 (1980).