Nuckols v. Mahone , 15 Ala. 212 ( 1849 )

COLLIER, C. J.

In the Mobile Cotton Press &c. v. Moore & Magee, 9 Port. Rep. 679, we made the following deductions from authorities : “1. A party injured by the improper execution of a fieri facias, may obtain redress on motion to the court from which the writ issued. 2. That a sale of land will be set aside, where the sheriff is guilty of a mistake, irregularity, or fraud, to the prejudice of either party, or a third person. 3. So the misrepresentation or fraud of a purchaser, furnishes just ground for invalidating the sale.” This'decision was recognized in McCullum v. Hubbert and Caple, 13 Ala. Rep. 289, in which it was also held, that the fraud which will authorize the court to set aside a sheriff’s sale of land on motion, must exist at the time of the sale. Subsequent irregularities will not justify it, but the party aggrieved must assert his rights in another forum. Where real estate has been sold under afi. fa., a motion to set aside the sale will be entertained, not only by a party to the process, but by a previous vendor of the land with a covenant of warranty, any time before the purchaser obtains possession, or recovers it by suit; and even after the possession is obtained, where this takes place in so short a time afther the sale, that application cannot conveniently be made to set it aside. Abercrombie et al. v. Conner, 10 Ala. Rep. 293.

In Chambers v. Stone & Pope, 9 Ala. Rep. 260, it was decided, that the quashing an execution for irregularity, does not of itself set aside a sale of land made under it. Nor should the sale be set aside, if the purchaser, without notice of the irregularity, has paid his money and obtained a deed. The onus of proving such notice lies on the party making the motion.

A motion to amend a sheriff’s return, by striking out the levy of the fi. fa. on a slave, alledged to be the property of a stranger to the process, will not be entertained at the suit of such stranger. Cawthorn v. Knight, 11 Ala. Rep. 268. It was admitted that the court would, as in the cases we have cited, prevent the abuse of its process by setting aside a levy and sale ; but it was added, that “ it never has been supposed, that under color of exercising this right, it could in this summary way determine upon conflicting titles to property.” See Blount and Stanley v. Traylor, 4 Ala. 667.

The objection to Üiefi.fa. in the case at bar is, that it was issued after the death of the plaintiff therein. This is a sufficient ground for quashing it, at the instance of a party or privy; but if the plaintiff stand in a situation which entitles him to submit a motion for that purpose, the invalidity of the execution does not warrant the court in setting aside the sale against a bona fide purchaser without notice. See Chambers v. Stone and Pope, supra. Besides, the latent defect in the fi. fa. cannot be regarded an abuse of the authority of the sheriff, or in any manner enter into its execution, where the officer has merely followed its mandate. If the land which was sold is really the property of the plaintiff in the motion, he may make his title appear, and defend his possession when the purchaser asserts his right; but we have seen, the conflicting title will not be determined upon the application to set aside the sale. Cawthorn v. Knight, supra. See also, Stewart v. Nuckolls, at this term.

Neither of the grounds upon which the rule to show cause was granted, authorized the circuit courr to set aside the sale. The judgment sustaining the demurrer, which, in point of law, was merely a denial of the motion, is therefore affirmed.