Bryan v. Kelly , 85 Ala. 569 ( 1888 )

CLOPTON, J.

A writ of attachment was issued by a justice of tbe peace in favor of Wharton & Brittain against the estate of plaintiff, and was levied by appellant Bryant, as constable, on personal property of tbe defendant in attachment, which was removed from tbe premises, and after-wards sold by tbe constable. After tbe levy, and before tbe sale, plaintiff filed in tbe office of tbe judge of probate a declaration and claim of exemption, and, as be alleges, filed tbe same with tbe officer making tbe levy. Tbe action is brought by tbe plaintiff on tbe official bond of tbe constable, against him and bis sureties; and tbe only breach assigned, in respect to which any evidence was introduced, is, that tbe constable disregarded tbe claim of exemption, and sold tbe property. Tbe other breach is, that tbe constable refused to accept a replevy bond which was tendered by plaintiff; but no evidence was introduced to show that such bond was tendered, and no question arises on that breach.

The question in regard to the validity of the bond was raised by objections to its introduction in evidence, the specific grounds of objection being, that it shows on its face that it was taken without authority of law, and it is not shown by what authority it was required. The bond recites, that the constable was required to give a new bond, and it is set forth in the complaint as the foundation of the action, and purports to be signed by the defendants. Though an official bond, executed without statutory requirement as a condition precedent to entering into, or continuing in the office, is ordinarily regarded as voluntarily and gratuitous; when it is set forth in the complaint as the foundation of the action, and purports to be executed by the defendants, and its consideration is not impeached by plea, nor its execution denied by verified plea, it may be properly admitted in evidence to go before the jury. There is no plea impeaching the consideration of the bond, or denying its execution. — Code, 1886, §§ 2769, 2770; Johnston v. Caffey, 59 Ala. 336.

The declaration and claim of exemption was filed in the office of the judge of probate, November 18, 1885. The plaintiff: testified, that on the next day he went to the home of. the constable, and, finding him absent, gave the claim to his wife, and requested her to deliver it to him, and that the constable afterwards admitted that he had received it. Defendants severally objected to the admission of the constable being received in evidence. It was clearly competent as an admission against himself, even if it be conceded that it is not admissible against his sureties. In such case, it would be the better practice, to limit the operation of the evidence when received; but, this not being done, a co-defendant’s only remedy is by a charge, limiting and confining its effect and operation to the defendant making the admission. — Lewis v. Lee Co., 66 Ala. 480.

Section 2521 of the Code of 1886 provides, that “the defendant in person, or by his agent or attorney, may, at any time after the levy, and prior to the sale, file with the officer making the levy a claim in writing verified by oath.” If the evidence be believed, the wife of the constable became the agent of the plaintiff to deliver the claim of exemption; and if actually delivered by her to the constable, it was, in the meaning of the statute, filed with the officer making the levy, by the agent of the defendant in attachment.

The attachment was issued October 17, 1885, and was levied on the fifth day of November thereafter. The claim of exemption was filed with the officer November 19, 1885, and the bond sued on was approved November 28th, 1885. The property was sold two days thereafter. It is manifest that the plaintiff is not entitled to recover on the bond any damage suffered from any act of the constable prior to the approval of the bond, from which time, under the statute, it took effect. — Code, 1886, § 189.

The material question in the case is, whether the constable was authorized to sell the property, in disregard of the claim of exemption; and if not authorized, what damage did the sale cause the plaintiff? The question arises on the exclusion of the affidavit, on which the attachment issued, when offered in evidence by the defendants, the plaintiffs having previously introduced in evidence the attachment itself. In McLaren v. Anderson, 81 Ala. 106, the question arose on a proceeding to set aside a sale of a homestead under an execution. It was held, that a sheriff could not inquire behind the face of the process in his hands, and determine for himself that the judgment rests on a cause of action against which the homestead exemption is unavailing. But it is also said: “If the judgment and execution had disclosed on their face that the recovery was for a tort, it would have been the duty of the sheriff to disregard the claim as frivolous, and to proceed and make the sale. The execution, however, gave him no such information. It could not do so without going beyond the judgment-entry, which the clerk was not authorized to do.”

The writ of attachment is very informal and irregular. It does not state that the amount claimed to be due is for rent and advances, nor any statutory ground on which an attachment is authorized to issue for the enforcement of a landlord’s lien, and is issued generally against the estate of the defendant. Had it described or recited the substantive averments of the affidavit on which it issued, and had it been issued against the crops grown on the rented premises, so as to show its ' nature, the constable would have been authorized to disregard the claim of exemption. — Ex parte Barnes, 84 Ala. 540. The attachment fails to describe the affidavit with sufficient fullness to authorize the constable to look beyond it to the affidavit.

In considering the question of injury, it should be observed, that this is an action brought by a party claiming to be aggrieved by the sale of his property, on an official bond, against the principal and his sureties. To entitle the plaintiff to recover, he must, under the statute prescribing the extent of the obligation of the bond on the principal and sureties, show injury, either by a wrongful act of the constable committed under color of his office, or by his failure to perform, or the improper performance or neglectful performance of some duty imposed by law. — Code, 1886, § 273. The attachment is not void. Though issued against the estate of the tenant generally, it is merely irregular; and' having been levied on the crops only, and not having been abated, is capable of enforcing the landlord’s lien. — Ellis v. Martin, 60 Ala. 394. It is well settled, that the lien of a landlord for rent and advances is superior to all other liens, and will prevail against a claim of exemption, as regards the crops grown on the rented premises. — Ex parts Barnes, supra. The declaration of exemption not only makes a general claim, but also recites the attachment and its levy, and claims the property levied on as exempt particularly from the attachment. If the relation of landlord and tenant in fact existed between the plaintiffs and defendant in the attachment, and the indebtedness is for rent and advances, and the attachment was issued for the enforcement of the landlord’s lien, and the crops levied on were grown on the rented premises, they are subject to the attachment, and the claim of exemption is frivolous and unavailing. If these substantive facts, when appearing on the face of the process, authorize the officer to disregard the claim of exemption, they also, when established by reference to the affidavit and ether evidence, in an action on his bond, make manifest that his disregard of the claim could work no injury to the plaintiff, his property having been sold for the payment of a debt which was a paramount lien. This is on the same principle that a sheriff, when sued on his official bond, for failure to make the money on an execution, may show in defense that the property of the judgment debtor is incumbered by mortgage or other lien, superior to the lien of the execution, to an amount in excess of its value, and in consequence the plaintiff has sustained no injury.' — Abbott, v. Gillespy, 75 Ala. 180; Wilson v. Strobach, 59 Ala. 488. A disregard of a claim of exemption, by selling the property in satisfaction of a lien which prevails against it, when the claim is, in law and fact, frivolous and unavailing, is not of the classes of breaches of the official bond, which entitles the party to recover nominal in the absence of proof of actual damages, such as failing to return an execution, as required by law, or to perform like duties. For tbe purpose of showing tbat the plaintiff bad not been injured by tbe sale of tbe crops, it was permissible for tbe defendants to prove tbat tbe attachment was in fact issued for tbe enforcement of a valid and subsisting landlord’s lien; and as tbe initial step, tbe affidavit was admissible to show its nature, and tbe ground on wbicb it issued. We presume it was properly identified, as tbe bill of exceptions recites, in terms, that it was tbe affidavit on wbicb tbe attachment was based.

Tbe court did not err in tbe charges given and refused. Charge numbered five, requested by defendants, asserts a correct proposition of law, but there was no evidence before tbe jury on wbicb to base it. For tbe error mentioned, tbe judgment is reversed, and cause remanded.