Scranton, Barney & Co. v. Ballard , 64 Ala. 402 ( 1879 )

BEICKELL, C. J.

Tbe transcript contains tbe record of tbe proceedings on an application to vacate a sale of lands made under execution; tbe judgment tbereon rendered, vacating tbe sale as to a part of the lands, claimed as a homestead by tbe defendant in execution ; the record of tbe proceedings bad on a motion to amend nunc pro tunc tbat judgment ; and it also contains tbe record of the proceedings in an action of ejectment by tbe appellants, as purchasers of the lands at sheriff’s sale, against tbe tenants in possession, and of tbe judgment therein rendered. Two bills of exceptions are found in the record; tbe one taken to tbe rulings of tbe Circuit Court on tbe bearing of tbe application for a vacation of the sheriff’s sale; and tbe other, to tbe rulings of tbe Circuit Court on tbe trial of tbe action of ejectment. There is no certificate of appeal; and the only indication of tbe judgment it is proposed to examine and review, is found in tbe securitysbip for tbe costs of tbe appeal, which is entitled of tbe action of ejectment. Tbe assignments of error are directed to tbe rulings of tbe Circuit Court in both cases— the application to vacate the sale, and the action of ejectment. The judgment in each case is final, and would support an appeal; and the parties in each case ‘are different. The two judgments can not be joined in one appeal; and following the only indication found in the record, we must regard the judgment in the action of ejectment as alone presented for examination.

It may be conceded that the appellants had, at the commencement of the action of ejectment, the legal title, and the immediate right of entry to the lands ; but, to entitle them to judgment, the title and right of entry must have continued to the time of the trial. Its determination, or destruction, before the trial, operated a bar to their recovery. A plaintiff in ejectment must recover on a title and right of entry existing at the commencement of the action, and continuing to the day of trial.

The Circuit Courts have jurisdiction to vacate sales of land made by the sheriff, on process issuing out of them. A judgment rendered, vacating a sheriff’s sale, is of the same dignity, as binding and conclusive, and as incapable of impeachment collaterally, for error or irregularity, as any other judgment the court may render in the exercise of its general jurisdiction. The rendition of the judgment, vacating the sale of that part of the lands claimed as a homestead, until it was reversed (if it was subject to reversal), destroyed the title of the appellants to that part of the lands, barring a recovery by the appellants, to that extent, in the action of ejectment. This, we understand from the record, was the ruling of the Circuit Court, in the action of ejectment; for, as to the other lands, there was a recovery. We do not, therefore, enter on a consideration of the questions which would be involved, if the rulings of the Circuit Court on the application to vacate the sale were presented.

The judgment is affirmed.