Kirksey v. Hardaway , 41 Ala. 338 ( 1867 )

BYRD, J.

The bill of exceptions shows that the case was tried on an agreed statement of facts, which, are set out; which statement is silent as to the time when the defendant in execution acquired or owned the property levied upon and sold, except so far as the levy is evidence of the same. We can not, nor could the court below, under the rules of law, presume that the defendant acquired the property before the executions were issued, or the judgments were rendered, or the acts of 1881 and 1868 were repealed ; and therefore the court below had no authority in law for holding that the senior judgments had any lien superior to the junior ones.

If the property sold was acquired after the repeal of the acts of 1861 and 1863, then the judgments were no lien on the property; and upon the record we are not authorized to presume that the property levied upon was acquired previous to the repeal of those acts. What is the result flowing from such a state of facts and presumptions, we will not intimate, as, on another trial, a very different state of facts may be presented for adjudication.

The court below erred in the judgment rendered, and it must be reversed and remanded.