Branch Bank at Decatur v. McCollum , 20 Ala. 280 ( 1852 )

LIGON, J.

It is contended, on the part of B. & F. DeGraf-fenreid, that they are entitled to the satisfaction of their judgment before the other execution creditors of Kennerly, because, pending the action of detinue for the trial of the right to the slaves levied on by the sheriff, they caused writs of fi. fa. to be regularly issued on their judgment, and the othercreditors did not. We cannot give our assent to this proposition ; on the contrary, our opinion is, that so far as the slaves sought to be recovered in the action of detinue are concerned, a regular re-issue of writs of fi. fa. was not necessary, to continue the lien of those creditors -whose executions had been. already levied upon them. Pending that suit, tbe liens continued as they were at its commencement, and their operation only was suspended.

To this effect is the case of Mills v. Williams et al. 2 Stew. & P. 390. In that case, the proceeding by which the operation of the lien of Williams was suspended, was a claim suit under the act of 1812. In this, the suspension resulted from an action of detinue, in which the plaintiffs obtained possession of the slaves by executing the bond required by the statute. There'is no difference, however, between the two methods of proceedings, so far as they affect the lien of the execution- creditors.

It is also insisted, that B. & P. DeGraffenreid should have been preferred to the Branch Bank at Decatur, so far as the money arising from the sale of the slaves, Bob and William, is concerned. They predicate this claim upon the following facts: These slaves were levied upon by the sheriff, under a fi. fa., in favor of the Branch Bank at' Decatur against James C. Kennerly, several days before the attachment in favor of DeGraffenreid was issued, or levied. On the fi. fa. thus levied, the sheriff made a return in these words: “ The property was claimed by the attorney of Mrs. Kennerly, and not sold for want of indemnity.” The fair and, indeed, the only legitimate'interpretation of this return is, that the sheriff still retained the possession of the slaves, on which he had made the levy, but demanded indemnity before he would sell, which had not been given at the date of his return. This view of the return brings this branch of the case directly under the rule laid down by this court, in the case of Pickard et al. v. Peters, 3 Ala. 493, in which it is said, “ when the sheriff demands a bond of indemnity from the plaintiff, which is not given, he may deliver the property levied on to the person from whose possession it was taken, but if he does not do so, but retains it, the lien continues.”

This case is clearly distinguishable from that of Otey v. Moore, 17 Ala. 280, in which it was held, that the lien of an execution creditor should be postponed, in favor of the rights of a purchaser for valuable consideration. In that case, the sheriff required indemnity, which was not given, and here-ddiveml the slave to the defendant in execution, returned the writ of fi. fa. into the court out of which it issued, and before an alias was sued out Moore became the purchaser of the slave. In this case, from all that appears in the record, the sheriff did not part with the possession of the slaves after the levy, until they were taken from him by the coroner, by authority of the writ in detinue. Thus far, we can see no error in the judgment of the Circuit Court.

But the court below, after directing one of the executions in favor of the Branch Bank at Decatur to be fully paid, proceeds to direct that the remainder of the money in the hands of the sheriff be paid pro rata, to the fi. fa. numbered 1115 or 2500, in favor of the Branch Bank at Decatur, and the fi. fas. in favor of the Planter’s Bank of Tennessee, William H. Crittenden, Barton & Bro. and M. Gorman. . In this the court below erred; for the execution of the Branch Bank at Decatur, thus placed on an equality with the others, appears to have come to the hands of the sheriff nearly a month before that of Crittenden, and more than two months before the others with which it was classed, and there is nothing in the record to show that the priority of lien thus obtained was ever lost or impaired.

By the consent of the parties, the writ of error in the case of B. & F. DeGraffenreid against McCollum et al. is dismissed, and the record brought up under it is made a part of the case of the Branch Bank at Decatur against McCollum et al. in this court. In cases like the present, but one writ of error is allowable, in which all the parties below must be made parties to the record here.

For the error pointed out above, the judgment of the court below must be reversed, and the cause remanded.