Carlos v. Ansley , 8 Ala. 900 ( 1846 )

COLLIER, C. J.

It may well be questioned, whether a mortgage made avowedly for the purpose of securing the mortgagee against advances made in futuro, may not be supported, if it was executed in good faith. [Stover v. Herrington et al. 7 Ala. Rep. 142.] But as this question, though made upon the record, is not presented for revision, we decline considering it.

In Wier v. Davis and Humphries, 4 Ala. Rep. 442, it was held, that an execution against the goods and chattels of a party, could not be so used as to transfer a mere title unaccompanied by the possession; that such a power would be liable to abuse from collusive arrangements, by which a person out of possession, and with a doubtful title, would substitute another in his place, clothed with the more imposing title of purchaser, under a sheriff’s sale. Added fo this advantage, the possession itself would be changed by the seizure, and transferred to the purchaser. “We apprehend,” say the court, that “it is well settled, that the mere right of action of a defendant in execution to personal property, is not the subject of a levy.” This case is cited with approbation in Horton v. Smith, 8 Ala. Rep. 73, where it is also added, that the lonafides of the adverse possession is always a question for the jury; “ if this is wanting, the transfer, whether by sale or execution, will be inoperative.”

We will not undertake to pass judgment upon the acts and declarations of the claimant, in directing the slave to be levied on, then appearing on the day of sale, exhibiting his mortgage, and forbidding the constable to proceed, in consequence of which the slave sold for about one eighth of the sum he would otherwise have commanded. But the existence of these facts are of such a character, that it should have been referred to the jury, to inquire •whether the claimant was influenced by integrity of purpose; or whether his intention was not to defraud the creditors of Robinson, by purchasing the slave at a depreciation. If the claimant used his mortgage with the intention to produce either of these re-stilts, then he cannot be allowed to derive any advantage from his purchase. One or more of the charges withdrew the question of fraud from the jury, and supposed that the mere fact of an adverse possession by the claimant, whether acquired in good faith or not, made the subsequent levy irregular and unauthorized. In this we have seen that the Circuit Judge misapprehended tjie law. See Horton v. Smith, supra.

The fact that the claimant was, as the surety of Robinson, a joint defendant in the f. fa. did not take from him the right to purchase the property of his principal, when sold to satisfy it. We can conceive of no reason why his -rights in this respect should be restricted ; especially when by allowing a joint defendant to become a competitor, at a sale under execution of his co-defendant’s property, he may the better protect his own interests, without injuriously affecting the plaintiff in execution, or others.

Without adding any thing more, we have but to declare, that the judgment is reversed, and the cause remanded.