Lawson v. Orear , 4 Ala. 156 ( 1842 )

ORMOND, J.

As a general rule, a defendant in ejectment may set up an outstanding title in another, and the landlord may be permitted to defend as a co-defendant, but by a purchase at sheriff’s sale, the purchaser acquires such title only as the defendant in execution had in the premises — if he was a tenant, the purchaser will be a tenant also ; and in a suit by the landlord against him, will not be permitted to dispute his title. The reason of the rule, therefore, ceases, in such a case. [See Avent v. Read, 2 Porter, 480, where the law. was thus held.]

The rale that the best evidence must be produced, has been relaxed in the case of Records, from the necessity of the case, and secondary evidence, by an exemplified copy, admitted. But it would be strange if in cases where the original can be produced, it should be rejected because the inferior evidence of thé fact was not offered. It cannot admit of doubt that the evidence was properly admitted, although an exemplification of the record would also have been competent testimony.

The execution upon which the lands in this case were sold, came to the hands of the late sheriff a short time before the expiration of his term of office, and without any action thereon by him, was handed over to his successor, who proceeded to levy and sell. This proceeding was strictly correct. The old sheriff not having acted upon the writ had no power to proceed thereon after the expiration of his term of office, and the duty devolved on his successor, to whom, as the executive officer of the law, it was addressed. This precise question was determined by this Court in the case of Bondurant et als v. Buford, [1 Ala. Rep. 360.]

There is no error in the judgment of the Court, and it is therefore affirmed.