Chambers v. Stone , 9 Ala. 260 ( 1846 )

ORMOND, J.

The case of Harrell v. Martin, Pleasants & Co. 4 Ala. Rep. 650, is a conclusive authority, that the execution was irregularly issued, there being less than fifteen days between the teste and the return day of the writ, and that the court below acted correctly in quashing the execution.

It is admitted by the counsel for the defendant in error, that the quashing of the execution does not necessarily set aside the sale, and that if the purchaser acted in good faith, and in ignorance of the irregularity of the process, purchased the property, paid his money, and obtained a deed, that he should not be disturbed. The record is silent upon all these points, except, perhaps, that it may be inferred, from the return of the sheriff, that the purchase money has been paid— and the case, in this aspect, is narrowed down to the question, whether the purchaser must prove these facts to protect his purchase, or whether the onus is not cast upon the party seeking to invalidate the sale.

In our opinion, it cannot be assumed, that the purchaser who appears upon the record as a stranger to the judgment, was privy to the irregularity of the execution, nor, indeed, how he could have proved, that he did not have such knowledge. If, from any improper conduct on his part, the sale ought to be set aside, the proof should come from the other side. In the present aspect of the record, the sale appears to have been vacated in consequence of the execution under which it was made, being quashed for irregularity. This was not a sufficient reason for setting it aside* and the judgment of the court vacating the sale, must therefore be reversed, and the cause remanded. See Wyman v. Campbell, 6 Porter, 219; Bumpass v. Webb, 9 Porter, 201.