Nicolson v. Burke , 15 Ala. 353 ( 1849 )

COLLIER, C. J.

In Lunsford et al. v. Richardson & O’Neal, 5 Ala. 618, it was decided, that the proper course to be pursued for the purpose of avoiding a forthcoming bond, or defraying the effect of an execution issued thereon, was by motion to the court to which it was returnable. The execution in that case issued against the goods, áse. of John Lunsford and three other persons, and the bond described it as having issued against the goods, &c. of John Lunsford, only; the aggregate of debt, damages and costs which it required to be made was $2,492 50, and the bond states the amount to be $2,743. The court said, “ these discrepancies it is be- , lieved are so great, that we cannot say from an inspection of the execution in the record, that it is the writ to which the bond refers. The misdescription is such, that it cannot be identified with reasonable certainty; the execution being placed out of the way, there is nothing to sustain the bond, and the circuit court should have quashed it.” So in Moffitt and Watson v. The Branch Bank at Mobile, 7 Ala. Rep. 593, it was held that a judgment and execution against Elisha Moffitt and another person, will not sustain a forthcoming bond which describes a judgment and execution against Elisha Moffitt alone. “ This discrepancy,” say the court, “ is so great, that we cannot say that it is the execution and judgment described in the bond, and it does not therefore appear that there was any authority for taking it.”

If an execution be issued in the lifetime of the defendant, the lien may be continued after his death by an alias oxpluries Ji. fa.; but if there be a chasm by the lapse of a term during which there was no execution, in the officer’s hands, an alias cannot issue, but the judgment must be revived by scire facias against the personal representative. Bond, Adm’r v. Dennis. 6 Ala. Rep. 55. Although there be a plurality of defendants in the judgment, the rule will be the same in respect to the one who is dead. Jones, adm’r v. Swift, 12 Ala. Rep. 144. Where a defendant, against whose estate a fi. fa. is sued out, dies after the judgment has been injoined, his lands are not subject to levy and sale under an‘'execution issued after his death, upon the dissolution of the injunction. Abercrombie v. Hall, 6 Ala. Rep. 657. But the mere error in an execution, for which it is quashed, 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. Chambers v. Stone & Pope, 9 Ala. Rep. 260.

The cases of Boyd, adm’r v. Dennis, and Jones, adm’r, v. Swift, supra, and several others in this court, which determine that the lien of a fi. fa. may be continued by an alias execution issued after the defendant’s death, apply alone where the personal estate of the debtor is sought to be reached. See Lucas v. Doe ex dem. Price, 4 Ala. Rep. 679; Mansony & Hurtell v. The U. S. Bank, et al., Id. 735; Stewart v. Nuckals, at this term. These latter citations show that the rule has no application as it respects lands; See further, Hubbert and another v. McCollum, 6 Ala. Rep. 221: Smith & Bowdon v. Knight, 11 Ala. Rep. 618; Del Barco v. The Br. Bank at Mobile, 12 Ala. Rep. 238; Moore & Cocke v. Bell, 13 Ala. Rep. 459; McCollum v. Hubbert and Caple, Id. 282; Martin v. The Br. Bank at Decatur, at this term.

In the case at bar, the action was against Spencer Roane, in favor of Walke & Clarke, for the use of William Rain & Co.; the judgment and original fieri facias thereon, pursue the writ and declaration in describing the parties. But the forthcoming bond is executed by Roane and Burke, without designating them as principal and surety. In the condition, the execution is described as having issued in favor of Walke and Clarke, taking no notice of the beneficial plaintiffs, and against Roane and Burke for the sum of $351. The amount required to be made by the fi. fa. is $328 18 debt, $21 85 damages, together with $6 56 1-4 costs of suit. Without stopping to inquire whether the discrepancy between the amount of the execution which issued, and that described in the bond, is fatal to the bond as a statute obligation, we are satisfied that the execution described in the condition, varies so materially from that which is part of the record, that the latter cannot be identified as the one on which the levy referred to in the condition, was made. Placing out of view the omission of the names of the beneficial plaintiffs, the insertion of the name of Burke as one of the defendants in execution, indicates that there must be another fi. fa., which does not appear, or that that found in the transcript does not support the bond. In Lunsford et al. v. Richardson and O’Neal, and Moffitt & Watson v. The Br. Bank at Mobile, supra, the names of one or more of several of the defendants to the execution, were omitted in the description of it in the fi. fa., and the omission was held a fatal variance. Here, the name of an individual who was not a party to the judgment and execution was inserted, which we think makes the misdescription more striking, than the mere omission of the name. In the former case, the description is not false, but imperfect; while in the latter, it is both false and imperfect.

A forthcoming bond, when taken in conformity to law, is to have the force and effect of a judgment, and an execution may issue on it; but to support an execution, it must be such as the statute requires. Upon such a bond, which will not authorize an execution to issue against the parties to it, an action is sometimes maintainable at the suit of the obligee. Whitsett v. Womack, 8 Ala. Rep. 466; Meredith v. Richardson & O’Neal, 10 Ala. Rep. 828. If however, the bond be so defective that the force and effect of a judgment cannot be accorded to it, we cannot see how it can furnish the authority for an execution to issue. Where the bond is such as the statute contemplates, upon being returned forfeited, it becomes a quasi judgment for the purpose of sustaining an execution against the principal and surety; but if it want any of the essential characteristics, no such effect can be given to it. We have seen that the fi. fa. which was levied on the property of Roane, is not identified in the condition of the bond, but there, another execution between different parties is described. This being the case, there is wanting the basis on which to rest the bond as a statute obligation, and of course the execution as it respects .Burke, was issued without a legal warrant. The bond then, so far as it concerns this case, must be treated as a nullity — as giving no authority to the clerk to direct the levy on, and sale of Burke’s property; and the execution professedly founded upon it, is merely void. This conclusion seems to us to be the necessary consequence of the premises from which we have reasoned. There can be no middle ground at which we cán stop, and say that the execution is voidable only. If an execution issues where there is no judgment, or one so entirely-variant that by no allowable amendment, can it be shown that the execution was founded upon it, the proceedings under the execution cannot be supported. The present case is quite as strong to show the invalidity of the process — the bond, the quasi judgment is in itself so defective, as not to authorize an execution to issue ; the fi. fa. then, under which the plaintiff in error claims, issued without the warrant of law, and could not have been executed. If this view be well founded, it seems to us, that there can be no pretence for sustaining the purchase of the plaintiff in error; but it must fall with the execution and bond, upon which it is dependent for its legal validity. We will not extend this opinion, by considering the other questions raised, as their decision becomes unnecessary. The judgment of the county court must be affirmed.