Dryer v. Graham , 58 Ala. 623 ( 1877 )

BBICKELL, C. J.

1. It is insisted by tbe appellant, that although the issue of tbe venditioni exponas may have been irregular, and tbe sale of tbe lands under it unauthorized, the administrator de bonis non bas not such an interest in the lands, and can sustain no such injury as will entitle him to move a vacation of the sale. It is certainly true, that an application to a court of law for the vacation of a sale, made under its process, will not be entertained at the instance of a mere stranger to the process, and who is without interest in the property sold. But whoever is a party or privy to the process, and has interests which will be injuriously affected if the sale is permitted to stand, may move its vacation. — Abercrombie v. Conner, 10 Ala. 293; Lee v. Davis, 16 Ala. 516 ; Freeman on Executions, § 305. The statutes entitle an administrator, whether the administrator in chief or an administrator de bonis non, to enter on and take possession of the lands of the intestate, intercepting the right of the heir to enter. Whether the estate is solvent or insolvent, he may in his representative capacity maintain an action for the recovery of possession, if it is withheld from him. Power to rent the lands is conferred, and it is his duty, if a sale of them is necessary for the payment of debts or for distribution, to apply for and obtain orders of sale from the court of probate. He is a privy to the process against his intestate, and the right of entry and possession with which he is clothed, would be embarrassed if he was not allowed to maintain a motion to set aside an irregular or illegal sale, under judicial process, as he is to pursue other actions to obtain possession.

2. The record discloses that, prior to • the death of the intestate, Strange, there was an execution against him in the hands of the sheriff, a lien, and levied on the lands which was stayed by order of the plaintiff. After his death, without the lapse of a term, an alias execution issued, which was again levied, and after its return a venditioni exponas issued commanding the sheriff to sell the lands. It is insisted the lien of the execution, issuing and levied before the death of the intestate, was lost by the order of the plaintiff to stay it. And further, that the statute does not authorize a venditioni exponas to issue for the sale of the lands of a deceased person, but requires a lien by execution obtained in his life to be continued in no other mode than by an alias fieri facias. Liens of executions may be lost as against junior judgment creditors, mortgagees, or vendees acquiring rights during the time the execution may be stayed by order of the plaintiffs. But as against the defendant in execution, or his personal represeñtative or heirs, or others not acquiring rights or liens, the mere suspension of the execution, has no effect on its lien.

3. A venditioni exponas in our practice, is a writ of execution, directed to the sheriff commanding him to sell goods or chattels, or lands and tenements, on which he has previously levied, and which remains unsold. It is issued by the clerk, as other writs of execution are issued, without any express order from the court. It rests in the election of the plaintiff in execution to take out an alias execution, or a writ of ven-ditioni exponas.— Gary v. Hines, 8 Ala. 837; Autry v. Walters, 46 Ala. 476. If he desires merely a sale of the property on which a levy has been made, and not of other property, or the acquisition of a lien on other property, a venditioni expo-nas is the proper writ. The venditioni exponas continues the lien of the execution which has been levied, as to the property on which the levy was made, whether the property be real or personal. — Freeman on Executions, § 60. The writ is, indeed, merely for the continuation and completion of the original execution.- — Taylor v. Doe, 13 How. (U. S.) 293. And if its mandate is for the sale of lands on which there has been a previous levy, it not only compels a sale, but confers the authority to sell, and the title of the purchaser has relation to the date of the lien of the execution. — Badham v. Cox, 11 Ired. 456; Taylor v. Mumford, 3 Humph. 66. True, the statute declares a fieri facias issued and received by the sheriff during the life of a defendant, may be levied after his decease, or if a term does not intervene', an alias may be issued and levied, and does not expressly authorize the issue of a venditioni exponas. The purpose of the statute is to continue the lien acquired in the life of the defendant, notwithstanding his death, and to authorize such process as is necessary to enforce the lien. A venditioni exponas is in its nature and operation, as to the property on which the levy may have been made, an alias execution; it merely commands and authorizes, as to real estate, the completion of the execution already begun. The result is, the Circuit Court was in error in vacating the sale of the lands, and the judgment must be reversed and the cause remanded.