Anderson v. Whitaker , 103 Ala. 658 ( 1893 )

HEAD, J.

We are unable to see any ground upon which the circuit court could properly have set aside the sheriff’s sale in this case. The sale was regularly made, on the 6th day of July, 1891, under a venditioni exponas duly issued. J. G. Anderson, a stranger to the writ and record, became the purchaser, who, on the next morning, paid the purchase money and received the sheriff’s deed. The defendant in execution, the present movant, for the express purpose of saving his right of redemption, surrendered possession to the purchaser, and leased the property from him. The gi’ounds of the motion to vacate the sale are that the plaintiff in execution knew, at the time the sale took place, the cause, wherein the ven'ditioni exponas issued, would be appealed to the Supreme Court of Alabama, and that said J. G. Anderson, the purchaser, was notified by defendant, before the sale and before he paid the amount bid on said sale, that said cause would be appealed to the Supreme Court; that the cause was appealed and the judgment reversed and the cause remanded. By an amendment of the motion, it' was alleged that a supersedeas bond was filed, in the cause, before the payment of the purchase money by said J. C. Anderson. We take this last averment to mean that the bond was filed and approved, before the purchase money was paid, or else there is nothing in the whole motion upon which it is conceivable a matei’ial issue could be formed.

We remark, in the first place, that the argument, upon which counsel for appellant seem to rely mainly, that the purchase was the result of collusion between the plaintiff in execution and the purchaser for the plaintiff’s bemefit, 'has no support in any allegation of the motion, even if there was sufficient evidence to support it, which there was not.

The undisputed evidence shows that, while the supersedeas bond was handed to the clerk on the morning of the 7th of July, before the purchase money was paid and sheriff’s deed executed, yet, as he had the right to do, he demanded time to investigate as to its sufficiency, and did not satisfy himself and accept the bond until several days afterwards. Without deciding, therefore, what its effects would have been upon the sale made the day before and consummated the next by payment of the bid and delivery of the deed, if the bond had been approved before the latter took place, we are compelled to hold that no supersedeas had been effected prior to the payment of the money and delivery of the deed. There is no valid ground for the motion.

Affirmed.