Autry v. Walters, 46 Ala. 476

Autry v. Walters

46 Ala. 476 | Ala. | 1871

PECK, C. J.

The only question made on this record is, can land levied upon by an attachment, after judgment for the plaintiff, be sold under a venditioni exponas ?

We have no hesitation in answering this question in the affirmative. Until the year 1837, lands were not subject *479to be levied upon by an attachment. By an act of that year, (Clay’s Dig. p. 60, § 29,) it is provided that “ whenever an original attachment shall be issued for, or upon any of the causes now provided by law, it shall be lawful to levy the same upon any land belonging to the defendant in such attachment, by the officer whose duty it may be to levy or execute the same, in the same manner that attachments are, or may be by law authorized to be levied on goods, chattels, or effects.”

In the case of Gary v. Hines, 8 Ala. 837, it is decided that “ where a judgment is obtained in a suit commenced by attachment, the plaintiff may, at his election, take out a venditioni exponas for the sale of the property attached, or he may sue out an ordinary fieri facias.”

In that case, it is true, the attachment was levied on personal property, and not lands, but the language of the court is broad enough to embrace lands so levied upon, as well as personal property.

Now, as is often the case, suppose lands and personal property be levied upon by the same attachment, after judgment, can there be any good reason why both may not be sold under the same writ ? We are unable to see any.

If, in such a case, the property levied upon is sufficient to satisfy the judgment, so as to render a resort to other property unnecessary, the appropriate writ would seem to be a venditioni exponas to sell the property on which the plaintiff acquired a lien by the levy of his attachment, rather than the ordinary fieri facias.

Eor these reasons, it seems to us, the court below decided rightly in overruling the appellant’s objections to the admissibility of the venditioni exponas and the sheriff’s deed for the lands sold under that writ.

Let the judgment be affirmed at appellant’s cost.