13 Ala. 431 | Ala. | 1848
The rule is so well established, that a claimant of property cannot be permitted to question the propriety of the judgment, or the regularity of the execution, that it is unnecessary to refer to the numerous decisions in support of it. A claimant shall not be permitted even to show the satisfaction of the judgment. But I understand this rule to be limited to this extent, that the claimant shall not sustain his claim by showing such defects or irregularities. In the case at bar, the title of the claimant is older than the lien of the plaintiff, unless the plaintiff can show, that his lien is older than the date of his execution, or the time when it came to the hands of the sheriff. If we look, therefore, to the date of claimant’s purchase, and to the execution only, the property is not liable to the execution; the sale is admitted to be bona fide. The plaintiff, then, must show that his lien he is seeking to enforce, has an older origin than the claimant’s purchase : he must show a valid subsisting lien against the slave, at the time of the sale from the defendant in execution, to the claimant. , The claimant has the right to controvert the existence of this lien, or to show that it has been lost. If this is not the law, then the trial of the right of property can never protect a purchaser from the defendant in execution, although the judgment may be ten years old, or the lien expressly abandoned. But all will admit, that if the title of the purchaser is older than the execution levied on the property, it is necessary that the plaintiff should go back, and show that he is prosecuting a lien, older than the claimant’s title ; and if his proof should not show a valid lien, older than his title, he must fail. So, if his proof shows that his lien is lost.
The return made by the sheriff, on the execution delivered to him on the third of October, 1846, under the, directions' of the bank attorney, is this: “ The sheriff will return this execution, as the judgment is satisfied on which it issued, as per D. Chandler’s receipt lodged with me, dated first April, 1841. The branch bank will rule the sheriff.” This return was made on the fourth November, 1846. The title of the claimant bears date 28th October, 1846. What is the effect of this return ? In the case of Haden v. Walker, 5 Ala. Rep.
We therefore come to the conclusion, that the plaintiff has failed to show an older lien than the title of the claimant, and consequently, the property is not subject to the execution, for it can only be subject to the execution, by showing, that the plaintiff was seeking by his execution, to enforce a lien older than the plaintiff’s title. The judgment of the circuit court is therefore affirmed.
