Niolin v. Hamner , 22 Ala. 578 ( 1853 )

GrIBBONS, J.

The cases of Hodges et al. v. Laird, 10 Ala. 678, and Grovernor, &c., v. Bancroft et al., 16 Ala. 605, are entirely decisive of the question as to the power of the court to permit the sheriff to amend his return; and such amended return, when made, relates back to the date of the original return, and is in all respects substituted for it. After the return of the sheriff in the present case was amended, then the plaintiff had no evidence from it upon which to base his motion. He was proceeding upon a rule against the sheriff for not paying over money collected on an execution, when the return of the sheriff, after it was amended, showed that no money whatever had been collected.

But it is insisted, that the facts of the case did not authorize the court to grant leave to the sheriff to amend his return; that although the return was amended, still, the rights of the parties were not changed thereby, inasmuch as there had been a sale of the property levied on, without any claim put in, or motion from any one that it was not liable to the execution; and that the sale of the property, under such circumstances, was a satisfaction of the execution, to the extent of the nett proceeds of the sale.

It is undoubtedly true, as a general rule, that when property is levied on and sold under an execution, it is a satisfaction of the execution, to the extent of the proceeds of the sale; but this principle only applies where the property so levied on and sold is subject to the execution. The rule would doubtless be tbe same, if tbe property levied on and sold was not, in strict law, subject to levy and sale, if tbe real owner did not appear before tbe proceeds were appropriated and paid over. But when money is realized from a levy and sale of property, not in fact subject to tbe particular execution under wbicb it is sold, tbe party having tbe better legal right can, at any time before tbe money is paid over, appear before tbe court and claim the money; and in that case, it is no satisfaction of tbe execution under wbicb it was sold, or even a credit to be applied to it. This often happens, as between creditors of tbe same debtor. Although property may be sold under a junior judgment or execution, a creditor having an older lien may come in and take tbe money. Campbell, use, &c., v. Spence, 4 Ala. 543. We see no reason why tbe same principle would not apply, where tbe sheriff bad sold property in which tbe defendant in execution bad no interest whatever. If tbe real owner chooses to waive tbe tort of tbe sheriff, and claim tbe money in bis bands, if bis claim is founded in right, tbe sheriff, in our opinion, may submit to bis demands, pay him tbe money, and thereby avoid tbe liability that be bad incurred by tbe sale of tbe property. This line of conduct tbe sheriff could adopt only on bis own responsibility. If tbe property was in fact subject to levy and sale under tbe execution, tbe plaintiff has bis remedy by proceeding against him for a false return. But tbe mere fact that tbe property has been sold by tbe sheriff, does not, in our opinion, necessarily operate a satisfaction of tbe execution under which it was sold, to tbe extent of the proceeds of tbe sale; nor does it place tbe funds necessarily beyond tbe control of tbe sheriff, so that be cannot give them to tbe rightful owner.

There is no error in tbe record, and tbe judgment of tbe court below is affirmed.