Governor v. Powell , 9 Ala. 83 ( 1846 )

ORMOND, J.

This case has previously been before this Court. The principal question then presented, was whether the sheriff was liable to the plaintiff, if he postponed the sale of property to the last sale day, before the return term .of the execution, and it should then turn out, that the property levied on did not sell for a sufficient sum to satisfy the execution. We held, he was not liable, if there Avas a reasonable expectation that the land levied on would, at public sale, bring a sum sufficient to satisfy .the execution^ in his hands, and if disappointed in this, he should in a reasonable time after, levy on other property, sufficient for that purpose.

It certainly was not our intention, by this decision, to overrule the case of Hallett v. Lee, 3 Ala. Rep. 28, where we hold, that a plea by the sheriff, that he had levied a short time before the return day, and the delivery bond was returned forfeited, too late for a sale of the property upon the forfeited bond, without any sufficient excuse for the delay, was no answer to the suggestion, that the money could have been made by due diligence. The decision heretofore made in this cause, is founded upon the hypothesis, that there was a well founded expectation, that the money necessary to satisfy the plaintiff's execution, and all having a prior right, would be realized by a sale of the land levied on.

The facts of the case, as now presented, are very different from the former. It is beyond doubt the duty of the sheriff, to make the money on all the executions in his hands, by the return day if practicable; and as far as possible to insure this result, he should levy on such an amount of property as would be sufficient to meet the exigeñcy of the writs in his hands, according to the usual and customary prices obtained at such sales.

In this case it appears, the levy was made on land encumbered by a mortgage, and the plaintiff attempted to affect the sheriff with notice of it, by showing that it was recorded. The court ruled that the probate was insufficient to authorize its registration, and also, that actual notice of the existence of the mortgage was insufficient. In both respects the court erred.

It is very obvious, that as the sheriff is answerable for an insufficient levy, when he could have made a levy on property sufficient to satisfy the execution, he must, as already stated,make an estimate of the amount the property he levies on will probably bring at public sale, and as land or other property, subject to an incumbrance, must be depreciated in value, by the amount for which it is incumbered, the incumbrance must necessarily be de'ducted from the estimated value of the land, and without now deciding, whether the sheriff was bound to examine the -record, or affected by the constructive notice from registration, it is clear he is bound by actual notice of its existence. After the receipt of this notice, it was his duty to make a further levy, unless it was reasonable to expect, that the land so incumbered, would, at sheriff’s sale, bring a sum sufficient to satisfy the plaintiff’s execution, and those having a prior lien to his. In this connection, if the levy Oh the land, reduced in value by the incumbrance unsatisfied, was insufficient to satisfy the execution of the plaintiff, and those prior to it, he would, on the authority of Hallett v. Lee, previously cited, be guilty of negligence in postponing the sale to so late a period, that he could not levy again, and sell before the return day of the writ.

The court also erred in deciding, that the probate was not sufficient to authorize the registry of the mortgage. The probate, though informal, was .sufficient to enable the mortgagee to record it. See Bradford v. Dawson & Campbell, 2 Ala. Rep. 203, and Kissam & Co. v. Hobson, 8 Ala. R. 357, where this question was fully discussed.

The court also erred in the test which it applied, to ascertain the value of the land. It has already been stated, that the sheriff must make a comparative estimate, of the probable amount the property he levies on will bring, at public sale. This results necessarily from the fact, that he 'is liable to the defendant in execution for an excessive levy, and to the plaintiff for an insufficient one. From the nature of the case, no precise standard can be applied, to ascertain in advance what any particular tract of land will sell for. There is usually a value set upon lands of the same quality in each neighborhood, but we cannot close our eyes to the fact, that the estimated cash value of laird is much higher than it usually brings at a forced sale, arising from the fact, that the sheriff must sell for the best price he can get, whilst at private sale, the vendor may wait until he can find a purchaser willing to. give the actual value. In order, therefore, to ascertain the bona Jides of the sheriff, in making the levy, the test should have been, not the actual value of the land, but the price at which such land usually sold for at sheriff A sale. Nor are we to bé understood to say, that the sheriff, at his peril, must, ascertain the price .the land will bring at the sale ; circumstances over which he can exert no control, may temporarily affect it. What is expected from him, is, that he will in good faith levy on so much property, if to be had, as will in all reasonable probability, yield at public sale the necessary amount of money.

The remaining question, whether the sheriff is not liable to the plaintiff in execution, for selling the land at a grossly inadequate price, is one of great moment, and which at present we shall decline to examine, as it is not distinctly shown upon the record, what the actual value of the land was, as encumbered by the mortgage. =.

Let the judgment be reversed, and the . cause remanded.