| Ala. | Dec 15, 1878
A purchaser of lands at a sale by a sheriff, to maintain an action of ejectment, must show the judgment on which the execution issued, under which the sale was made. It is the foundation of the authority of the sheriff to sell, without which his deed is of no more force than that of a stranger having no estate in the premises. Lewis v. Gognette, 3 St. & Port. 184. The judgment cannot operate as authority to the sheriff to sell, unless it proceeds from a court of competent jurisdiction — jurisdiction not only of the subject matter, power,to render the particular judgment, but jurisdiction also of the person against whom the judgment is rendered and whose estate it is the purpose of the sale to divest.— Webster v. Reid, 11 How. 437" court="SCOTUS" date_filed="1851-03-18" href="https://app.midpage.ai/document/webster-v-reid-86654?utm_source=webapp" opinion_id="86654">11 How. 437. In courts of law, under our statutes, jurisdiction of the person is acquired by personal notice, actual or constructive, or an attachment issuing against and levied on the estate or effects of the defendant. An attachment is a statutory remedy, extraordinary in its character, in derogation of the common law, and a judgment founded on its levy is void, if it appears to have been issued by an officer not having authority to
The judgment, on which the plaintiff in the Circuit Court relied to support his title, was rendered against a married woman, condemning her statutory separate estate to sale, in a suit commenced by attachment levied on the estate. The question is, whether the judgment is void or merely voidable. Mere irregularities, mere errors in its rendition, which would be ground of reversal in an appellate tribunal, will not affect the validity of the sale by the sheriff. The judgment must be void ; it must be apparent on its face, that the court was without jurisdiction to render it, or the title of the purchaser will not be vitiated. The judgment is not against the person of the wife — it is a judgment condemning her statutory separate estate to sale, and has more of the qualities and characteristics of a judgment in rem, than of a judgment in personam. — Ravisies v. Stoddart, 32 Ala. 599" court="Ala." date_filed="1858-06-15" href="https://app.midpage.ai/document/ravisies-v-stoddart--co-6506291?utm_source=webapp" opinion_id="6506291">32 Ala. 599. The jurisdiction of a court of common law, to render such a judgment, is statutory; it is not inherent in the court, and is not derived from the common law.
The statute which is supposed to confer the jurisdiction, is that which subjects the wife’s statutory separate estate to liability for necessaries for the family. - Code of 1876, §§ 2711, 2712. The remedy which is to be pursued to establish judicially the liability of the estate, and to authorize its condemnation, is prescribed by the statute — a suit against husband and wife jointly, or a suit against the husband alone, prosecuted to judgment and return of execution no property found, and a motion to the court for an order of sale, of which the wife must have notice. Personal notice to the wife, and nothing less, will satisfy the requirements of the statute. The notice may be actual, or constructive, if she resides in the State ; it must be by service of process ; and if she resides without the State, it may be given her by advertisement in the mode directed by the statute. But personal notice, whether given in the one mode or the other, is an indispensable element of the jurisdiction of the court to pronounce the judgment of condemnation against her statutory separate estate. As we have said, the judgment in its qualities and characteristics, is rather in rem than in personam; but jurisdiction to render it is acquired not by a seizure of the res, but by personal notice to the wife. It would not be consistent with the terms of the statute which creates the estate, define its incidents, and declare its liabilities, to permit a seizure of the estate to take the place of personal notice to the wife. While the title to the estate by the declaration of the statute, remains in her, and cannot be
The uniform construction which this statute has received, is, that the estate of the wife can be subjected to sale only by a pursuit of the remedy it provides. The jurisdiction it confers on the court, as to the estate of the wife, is special and limited. — Rodgers v. Brazeale, 34 Ala. 512" court="Ala." date_filed="1859-06-15" href="https://app.midpage.ai/document/rodgers-admr-v-brazeale-6506537?utm_source=webapp" opinion_id="6506537">34 Ala. 512; Carter v. Wann, 45 Ala. 343; O’ Connor v. Chamberlain, 57 Ala. 157. The action of the court in 'the exercise of this jurisdiction, cannot be supported, even when its validity arises collaterally, unless it affirmatively appears the essential requirements of the statute have been observed. — Foster v. Glagner, 27 Ala. 391" court="Ala." date_filed="1855-06-15" href="https://app.midpage.ai/document/foster-v-glazener-6505618?utm_source=webapp" opinion_id="6505618">27 Ala. 391; Gunn v. Howell, ib. 663.
In Wright & Wife v. Snedecor, 46 Ala. 92" court="Ala." date_filed="1871-06-15" href="https://app.midpage.ai/document/wright-v-snedecor-6508036?utm_source=webapp" opinion_id="6508036">46 Ala. 92, the court passed as unnecessary for a decision of the cause, the question, whether an attachment would lie to enforce the demands chargeable under the statute on the wife’s statutory separate estate. The question is now directly presented, and a decision is necessary to the determination of the right and title the appellee acquired by his purchase at the sale by the sheriff. Unless otherwise expressly provided, an attachment is a remedy for the enforcement of personal contracts and liabilities, not mere charges or liens on property, whether created by contract or by law. There is no contract binding the wife personally — no debt due from her. There is simply a charge on her statutory estate created by law; and there is no authority for the levy or seizure of the estate until the charge has been declared in amount and extent, and the estate subject to it, ascertained by the judgment of a court of competent jurisdiction, in a proceeding of which the wife must have notice. The levy of the attachment on her estate, and its issue against her personally, are not warranted by law, and are absolutely void.
It appearing from the record of the judgment, that it was rendered by default, without personal notice to the wife, on a levy of an attachment on her statutory estate, the judgment is void as to her, so far as it condemns her estate, and
For the error in overruling these objections, the judgment is reversed and the cause is remanded.