Hodge v. Thompson , 9 Ala. 131 ( 1846 )

GOLDTHWAITE, J.

1. Upon the question whether Daniel was a competent witness to sustain the title of his grantee, under the deed of trust, against that acquired by the purchaser at the sheriff’s sale, the decisions of this Court, in Pruitt v. Lowry, 1 Porter, 101, and Holman v. Arnett, 4 Ib. 63, seem conclusive against.his competency. By the sale under the execution, one creditor has received a direct satisfaction of his debt, and if the testimony of the debtor should. cast the purchaser, the property, under the deed, would be applied to the satisfaction of his other creditors, or revert to himself. He has therefore a direct and immediate interest to. produce this result, which is not, in our judgment, equipoised by the remote possibility, that the satisfaction entered upon the execution may be set aside, if a recovery is eventually had against the plaintiff in that case, for directing the sale.

2. The competency of Myatt as a witness, depends upon the fact, whether he is or is not, responsible on his bond, indemnifying the sheriff for selling the slave in controversy. It is very clear, the plaintiff here might have brought his action against this witness, for directing the levy and sale, if, as asserted, the title was valid under the deed. It is equally clear, a similar action might have been brought against the sheriff. Can it then be said, the responsibility is avoided, because the party has chosen to proceed in detinue for the recovery of the slave in the hands of the purchaser, who may have been induced to make the purchase in consequence of the indemnity to the sheriff ? It is held, in the case of McGhee v. Ellis, 4 Litt. 244, that the sheriff is liable whenever his vendee is evicted, in consequence of the entire want of title in the defendant, whose supposed property has been sold. Nor is this so unreasonable, as, without consideration it might be supposed. As before observed, the sheriff is liable to the person whose goods are wrongfully seized, and sold, and there is no reason why Jhe should be relieved from this liability, when'the true owner chooses, as he may do, to pursue the purchaser instead of the sheriff. The case of Brummel v. Hart, 3 J. J. M. 709, goes the length of deciding, that the purchaser, when the creditor has interfered, by ordering the sheriff to levy and sell, has a direct remedy against him if evicted. On principle then, as well as the authority of these adjudications, we feel warranted in holding, that when the execution creditor has indemnified the officer, and the purchaser is evicted for want of ti-tie in the debtor, he may proceed against the -sheriff as a warrantor. Whether the rule extends beyond this, it is unnecessary at this time to determine, as 'this conclusion shows, the witness was directly interested to sustain the sheriff’s title, and was therefore improperly admitted as a witness for the defendant.

3. The remaining point is, with respect torthe evidence of the declarations of Daniel, made previous to the execution of the deed, allbwed to go to the jury, to show the object and purpose for which it was made. We cannot ^welljsee how this evidence was proper, as the object and purpose of the deed was to be ascertained from itsjface/’or by proof showing its falsity. It may be however, that the bill of exceptions is not so full on this point as was intended, and therefore we shall decline any determinate opinion, beyond what has already been said.

For the error in the admission of the witness, Myatt, the judgment is reversed and the cause remanded.