Jordan v. Mead , 12 Ala. 247 ( 1847 )

ORMOND, J.

Before proceeding to consider the merits of the case, it is proper to examine an objection raised by the defendant in error, that the executions under which the defendant below deduced his title, conferred no authority upon the constable to sell, because they were not certified by a justice of the peace for Jackson county, having been issued by a justice of the peace of Madison county.

The act of 1822 (Clay’s Dig. 207, § 32) provides, that where a defendant against'whom a justice has rendered a judgment, removes to another county, the justice may issue an execution against his property in such county, “ which execution shall be certified by the clerk,” and be executed, and returned by any officer of that county.

In 1824, another act was passed on this subject, (Clay’s Dig. 207, § 35), that, “ in all cases of executions running from one county to another, it shall be the duty of any justice, of the peace of the county to which such executions may be directed, upon having the same presented for that purpose, and upon being satisfied of the hand-writing of the justice of the peace issuing such execution, to certify the same, which shall be sufficient evidence of the authenticity thereof.” We cannot think it was the design of the legislature, by the passage of this last act, to repeal the former. It was evidently intended to provide another mode for the accomplishment of the same object, the authentication of the paper as a genuine writ, and such being the case, it follows, that either mode will be sufficient, and having been certified by the clerk of Madison county, the constable was authorized to act upon them as genuine writs.

The certificate of the justice of the peace, before whom the acknowledgment of the execution of the mortgage was made, is dated 17th December, 1838, whilst the mortgage itself bears date the 17th December, 1839; and from the certificate of the clerk of the county court, it appears it was delivered for registration on the 23d March, 1840. The date of this certificate, being prior to that of the deed, the execution of which it purports to establish, is manifestly impossible, and if not open to explanation, by proof of the true date, must be-inoperative. In the case of a deed, the date is a mere formal part, being only prima facie evidence of the time of delivery, and may be contradicted or explained. [2 Stewt. & Porter, 65.] The date of a certificate such as this, can certainly have no greater sanctity than that of a deed. It could not be tolerated, that the mistake of an officer in dating his certificate, should prejudice the rights of the parties. We are clear in the opinion, the mistake could be explained by parol proof, so as to show when the certificate was in fact made, which is fully established by the proof. It was not necessary to let in this proof, that there should hare been an averment that there was a mistake in the date of the certificate. The allegation that it was acknowledged on a particular day, is sufficient, and it was not necessary to state the evidence by which the allegation was to be proved.

It is satisfactorily established by the testimony, that Jordan had notice of the mortgage of the complainant before he purchased the slave in controversy, and examined it on the record of the county court. But as it does not appear, that Connally the creditor had notice of the unregistered mortgage, before his lieh attached, by a levy of his executions upon the slave by the constable, the purchaser at the constable’s sale, may protect himself under the lien of the creditor. If this effect is not ascribed to the creditor’s lien, it is illusory; whether a notice to the creditor, would have prevented the lien from attaching, if given previous to the levy of the executions, we need not now stop to inquire.

This point was expressly ruled in Daniel v. Sorrelles, 9 Ala. 447, as it respects real estate, and the principle is entirely applicable to personal property. In that case, the lien was held to attach, upon the rendition of the judgment, as that gives a lien upon the real estate of the defendant. The same effect must flow from the acquisition of a lien upon personal property, in virtue of the delivery of an execution to the sheriff from a court of record, or an actual levy of an execution from a justice’s court by a constable. In both cases the lien is absolute against the defendant in execution, and must be good against one holding under him, by a title of which the creditor had neither actual, or constructive notice, before his lien attached.

This point is decisive of the whole case, as it shows that the complainant has no right to foreclose his mortgage, against the slave so purchased, and renders it wholly unnecessary to consider the other points made in the argument.

The result is, that the decree must be reversed, and a decree be here rendered dismissing the' bill.