Jackson v. Gewin , 9 Ala. 114 ( 1846 )

GOLDTHWAITE, J.

1. We shall first examine the position assumed by the defendant, in which he insists the judgment ought not to be reversed, notwithstanding there may be error in the charge, upon which the cause went to the jury, inasmuch as the proof discloses the slaves have been sold under a venditioni exponas, issued in the claim suit. This circumstance is certainly one of great importance, in the investigation of the respective claims of these parties, but we think it improper now to entertain the question, because no point respecting it, seems to have been made in the court below, and it may be, the effect of this proof may have been weakened or destroyed by other facts connected with it. It is true, there is a class of cases in which this court has refused to reverse, although an abstract error was made to appear, but on examination, they will be found to be, where the case as made by the party himself, was not sufficient to enable him to recover or defend, or where, notwithstanding the error, the party has had the benefit of his claim, or defence, under another phase of his case. [Rakes v. Pope, 7 Ala. R. 166; McKenzie v. Jackson, 4 Ib. 230; Shehan v. Hampton, 8 Ala. Rep. 942.]

2. We think the charge on which the cause was submitted to the jury is erroneous. In consequence of our statutes authorizing the institution of a claim, instead of a suit against the sheriff, the sale under the levy is postponed until after that claim is determined, and the property is usually returned to the claimant upon his executing bond with surety for the delivery of the property, in the event the claim is determined against him. The lien of the levy continues all the time, but the right of property is not in any wise affected. The precise principle was decided by us in the recent case of Atwood v. Pierson, January term, 1846, where the property of a stranger was levied on, and his vendee after the levy was permitted to interpose the claim. We do not perceive the force of the objections urged by the defendant’s counsel, as it is clear, the right of property sold or conveyed after a levy, and previous to a sale, by the officer, must always pass, clogged with the consequences growing out of the levy, in precisely the same manner as it does when a mere lien exists. It is proper in this case, complicated as it is by the subsequent transactions, to again repeat, that we decline to determine now, what is the effect upon the respective rights of these parties, if the sale of’ the slaves in controversy was made under the venditioni exponas, issued in the claim suit.

Let the judgment be reversed and the cause remanded.