Jones v. Davis , 2 Ala. 730 ( 1841 )

COLLIER, C. J.

— The questions presented by the assignment of errors, arise upon the bill of exceptions. It is insisted :

1. The lien created by the delivery of the plaintiff’s execntion to the sheriff, could not be defeated by the subsequent levy of the executions issued by the justice of the peace.

2. That the excess of cotton beyond what was necessary to satisfy the executions, at the suit of the defendant, was sold without the'authority of law, and should be condemned to the satisfaction of the plaintiff’s execution.

3. The executions issued by the justice of the peace, were inadmissible evidence in themselves.

4. The examined copies of the proceedings before the justice, though verified by the oath of a witness, were not sufficiently authenticated to make them evidence.

First. The decision of this point must depend upon the construction of the first section of the act of 1828, “relative to the satisfaction of executions.” That section enacts, that executions issued by a justice of the peace, shall operate as a lien on the property of the defendant, from the time of the levy and not sooner; and that the lien so created by the levy of an execution by a constable, shall not be overreached by the levy of any execution in the hands of the sheriff, not previously levied. [Aik. Dig. 166.]

It is argued for the plaintiff, notwithstanding the directness of the terms of the act cited, that as a lien attached in virtue of her execution, it must continue to operate until the execution lost its vitality, that the legislature cannot be supposed to have intended to take from an execution a lien, which they had previously declared should follow it, where the party entitled, was in no default. To sustain this argument, the case of Harrison v. Marshall, 6 Por. Rep. 65, has been cited. In that case it appears, that a lien had attached upon a fieri facias, issuing from the Circuit Court in November, 1827, and the levy was made by the constable in May, 1828 — after the passage of the act cited. The Court considered, that the right of the plaintiff having previouslyjusted to have his execution satisfied from the property against which it issued, was not intended to be interfered with, by the act of 1828. This case then, does not decide the question which the plaintiff has supposed.

The language employed by the legislature seems to us to be so direct as not to admit of controversy. It explicitly declares that the levy of an execution by a constable shall not be over* reached by the lien of any execution in the hands of the sheriff not previously levied. The case stated in the bill of exceptions, is that which is provided for, and the instruction of the Circuit Judge to the jury, is but the mere echo of the statute.

Second. It is the duty of a sheriff or other officer, to sell no more property than is necessary to satisfy the execution with costs, where the property levied on, is susceptible of division. In Tiernan v. Wilson, 6 Johns. Ch. Rep. 414, Chancellor Kent says, The proposition is not to be disputed, that a sheriff ought not to sell at one time, more of the defendant’s property than a sound judgment would dictate to be sufficient to satisfy the demand, provided the part selected can be conveniently and reasonably detached from the residue of the property, and sold separately. To the same effect, see 8 Johns. Rep. 333; 18 Johns. Rep. 362, and Woods v. Monell, 1 Johns. Ch. Rep. 502, and in Wheeler & McCurdy v. Kennedy, 1 Alabama Rep. N. S. 292, this Court held La similar doctrine.

But if an officer abuses his trust in this respect, the sale is not in the absence of fraud on the part of the purchaser, absolutely void as to the excess of the property sold. True, under some circumstances, if may be set aside upon motion to the Court, or by suit in equity; but until this is done, the title of the honest purchaser must be respected. (The Mobile Cotton Press, &c. v. Moore & Magee, 9 Porter’s Rep. 679 ; 1 Johns. Ch. Rep, 502; 6 Johns. Ch. Rep. 411.]

In Kentucky it has been held, that where more land has been sold than was necessary to satisfy the execution, in the absence of all circumstances to justify it, the sale was void. (Patterson v. Carneal’s heirs, 3 Marsh. Rep. 619 ; Pepper v. The Commonwealth, for, &c., 6 Mon. Rep. 27. But these cases depend upon a statute of that State, regulating the sale of lands under execution. (Addison et al. v. Crow et al., 5 Dana. Rep. 277.]

Where an officer is guilty of a breach of good faith in making an excessive levy, or sale under execution, he is liable in damages to the defendant in execution; and we will not say that a party, who has been threby prevented from obtaining satisfaction of a fieri facias, in his favor, may not main tain an action against him. That question does not here arise.

Third and Fourth. These questions may be considered together. If the defendant was a plaintiff upon the trial of the right, seeking to condemn property levied on, to the satisfaction of his executions, there can be no doubt that the executions would be admissible evidence in the absence of the judgments. That point was determined in Carlton et al. v. King, 1 Stewt. & P. Rep. 472, where executions issued by a justice of the peace had been levied on property claimed by a third person.

If the executions offered by the defendant were inadmissible in themselves, (a question which need not be now decided,) their admission was legalized by the copies of the proceedings before the justice of the peace. The original papers of the justice could not have been required; nor was it necessary that he should have attended himself as a witness to vouch the genuiness of the copies. Sworn copies of such papers are clearly admissible, and these copies may be made and compared by any competent person, to whom the justice will intrust the original for that purpose. [Hammer v. Eddins, 3 Stewt. Rep. 192.)

The suggestion in argument, as to fraud between the defendant and the constable, who levied his executions, does no t arise upon the record. All questions of that kind, were closed by the verdict of the jury.

It is supposed, that in the last charge given, the Circuit Judge decided a question of fact, which appropriately pertained to the jury. That charge was evidently intended, as a response to the prayer of the plaintiff. In assuming, that the defendant acquired a good title to all the cotton he purchased at the sale, the Court merely intended to say, that the executions were a sufficient authority for the constable to sell all the cotton, and that the defendant’s purchase invested him with a title to all as against the plaintiff.

In every view in which the case has been presented there, is no error, and the judgment of the Circuit Court is, consequently, affirmed.