Harris v. Murfree , 54 Ala. 161 ( 1875 )

BRICKELL, C. J.

This was a summary proceeding against the appellants, a sheriff and his sureties, under section 3033 of the Revised Code, to recover judgment for the default of the sheriff in not making the, money on an execution, which could have been made by due diligence. An issue was formed between tbe parties, which was submitted to a jury for trial, the issue being a denial of tbe truth of tbe allegations of the motion. Tbe official capacity of tbe principal, nor tbe fact of tbe suretyship of bis co-defendants was controverted; nor was tbe fact that an execution in favor of tbe plaintiff in the motion, corresponding to that described, came to tbe bands of tbe sheriff to be levied and returned. Tbe point of controversy was as to bis ability, by due diligence, to have levied it on property subject to it, and sufficient for its satisfaction. Tbe evidence was entirely oral, and related to tbe ownership by tbe defendants in execution, of real estate, and its value. The court charged tbe jury as follows: “ Tbe defendants’ title to tbe property has been sufficiently proved, and tbe only question left for you to determine is as to tbe true value of tbe property. You cannot consider its market value, or what it would have brought at execution sale.” To this charge an exception was reserved, and it is now assigned as error.

Tbe charge assumes, as fully proved, all that tbe evidence tended to prove — that tbe defendants in execution bad an interest in lands, tbe subject of levy and sale, and that tbe sheriff was fully informed of such interest, or by tbe use of due diligence could have obtained such information in time to have levied tbe execution, and made tbe money. It is a manifest invasion of tbe province of tbe jury, and is of consequence erroneous.—Jones v. Fort, 36 Ala. 449 ; McDougald v. Rutherford, 30 Ala. 253. It is also an invasion of the province of the jury, in not referring to them tbe credibility of tbe testimony, which was entirely oral.—1 Brick. Dig. § 98, 342. Tbe plaintiff was not entitled to a judgment without affirmative proof, satisfactory to tbe jury, that by due diligence tbe money could have been made on the execution by tbe sheriff.—Adams v. White, 2 Ala. 37. Whether such proof bad been made, and its sufficiency, tbe jury ought to have determined. Tbe court, by tbe charge, determines it for them, and limits their finding to tbe value of the lands. Charges less objectionable than this have been often repudiated by this court, and tbe duty of a judge in charging a jury not to assume as proved any fact which tbe evidence only tends to prove, and to leave tbe jury free to pass on tbe credibility of tbe evidence, enforced in strong terms.

The charge is also erroneous in narrowing tbe inquiry of tbe jury to tbe true value of tbe lands, and instructing them not to consider tbe market value, or what tliey^ would have brought at execution sale. Á sheriff, in making a levy, is bound to bear in mind, tbe fact known to all, that property, real or personal, at forced sales, under legal process, but seldom commands its real value. He must, of consequence, make his levies with a view to this fact, and cannot be charged for an excessive levy because the real value of the property seized may exceed the sum necessary to satisfy the execution, when the extent of its probable sacrifice at forced sale does not render the levy disproportionate. The sacrifice of real estate at forced judicial sales was the cause to which the redemption law owes its origin, the first of which was entitled “An act to prevent the sacrifice of real estate.” Pamph. Acts 1841-2, p. 8. The true measure of the liability of a sheriff for a failure to levy on and make sale of lands, under execution, is the sum which would have been produced by the sale. That is the extent of the injury the plaintiff has sustained, and that alone is the test by which it can be determined whether by due diligence the money could have been made on the execution.—Governor v. Powell, 9 Ala. 83 ; French v. Snyder, 30 Ill. 339.

In Johnson v. Cunningham, 1 Ala. 249, which was a proceeding similar to this, a suggestion against a sheriff, that he could, by the use of due diligence, have made the money on an execution, it is said it is permissible to show by oral evidence that the defendant in execution was in possession of the land, but not that he was its reputed, owner: It is too plain for argument that the evidence that the defendants in execution were the reputed owners of an interest in the lands, was not admissible. It would have been more appropriate to have objected to its introduction when offered, than silently have permitted it introduced, and then requested charges declaring its insufficiency. It is not necessary to consider the other matters presented by the assignment of errors; they will not probably arise on another trial.

The judgment authorized by the statute, under which the plaintiff is proceeding, is for the amount of the execution, interest, and ten per centum damages. It may be well for the parties to consider whether the proceeding is maintainable, unless the evidence shows the whole amount of the execution could, by due diligence, have been collected, or whether any other judgment than that prescribed can be rendered. ,

The judgment is reversed and the cause remanded.