Allen v. Best , 6 Ala. 234 ( 1844 )

COLLIER, C. J.

We are at loss to perceive any material variance between the order of court directing a sale of the land, and the mandate by wdiich it was carried into effect. In describing the execution which had been levied by the constable, the costs of the proceedings, up to the time they reached the circuit court, are stated in the order to have been three 81-100 dollars, while in the venditioni exponas, the entire costs are put down at thirteen 81-100 dollars. The fair inference is, that the costs were swelled to this latter sum by the action of the circuit court; the more especially as its mandate does not require or authorize any more to be collected than is thus expressed upon its face.

It is said by the plaintiff’s counsel, that the only discrepancy pointed out is, that the court orders that the sheriff “be commanded to sell” the land, &c., while by the venditioni exponas, he is “commanded to cause to be made of the lands,” &c. The legal effect of these terms is identical. When an executive officer is commanded by process to cause money to be made of property, he 'is authorized to sell it, for this is the only mode by which he can make it available in the collection thereof. This objection, then,- is equally untenable as the first.

But suppose there was a discrepancy which did not go the extent of making the venditioni exponas utterly void, would a bona fide purchaser at the sheriff’s sale be thereby affected? [Boren et al v. McGehee, 6 Porter’s Rep. 444; Wyman et al. v. Campbell et al. id. 219.] We merely state this question; the view taken docs not require that it should be answered.

The judgment of the circuit court is reversed, and the cause remanded.