7 Ala. 619 | Ala. | 1845
— The mere announcement of the sheriff • that he levied the execution, without any effort to acquire possession of the slaves was inoperative for all purposes. An officer must actually seize the goods on a fieri facias before he can sell; though it has been said that a seizure of a part in the name of the whole, is a good seizure of all. [5 Dane’s Ab. 39.]
A regular levy on the defendant’s goods invests the officer with a special property in them, and he may have trespass or tro-ver against any one who takes them away; for he is answera- . ble to the plaintiff for their value, and the defendant is dis
It has been held, that, in order to make a valid levy on personal property, the sheriff must have it within his power and control, or at least within his view; and if, having it so, he makes a levy upon it, it will be good, if followed up afterwards, within a reasonable time, by his taking possession, in such manner as to apprise every body of the fact of its having been taken in execution. [3 Rawle’s Rep. 405-6.] In the present case, the sheriff did nothing more than merely to state that he levied the execution of the plaintiff below, on the slaves in question. He did not take them into possession, nor can we infer from the bill of exceptions, that he attempted to exercise any control over them. Under these circumstances there was. no such divestiture of the authority of the trustee to sell, as would in any mauner affect the title acquired by the claimant as a purchaser.
But if the levy was valid, is it certain that the Circuit Judge did not claim for it a potency, to which it is not entitled ? There can be no question that the interest of a grantor in possession of property covered by deed of trust, may, before the time when the trustee is authorized to take possession of, or sell, it, to execute the purposes of the'dee'd, be sold under a fieri Jadas. But after this time has arrived, the right to the immediate possession, authorizes the trustee to assert his legal title against the creditors of the grantor, whose executions may be levied upon the trust property.
In Magee v. Carpenter, 4 Ala. Rep. 469, it was decided that the interest of a mortgagor in possession, might, before default, be sold under a fieri facias against him; but if the mortgage, after that event, conferred upon the mortgagee an immediate right of possession, he had a legal title which he could assert against the creditors of the mortgagor, at whose instance the property had been seized. In the P. & M. of Mobile v. Willis & Co. 5 Ala. Rep. 770, this Court, declared the law in no equivocal terms, and held that a claim of property was, in such a case, rightly interposed by the mortgagee. [See, also,
If a trustee may become a claimant under the statute, against an execution creditor of the grantor, will the levy so divest his powers under the deed, as to make a sale by him, afterwards, inoperative? In Bigelow v. Wilson, 1 Pick. Rep. 492, it is said, that an attachment of property does not change the estate of the debtor, or take away his power of alienation; it gave only a lien, and the debtor might legally convey the property, subject to the lien. This lien the purchaser might discharge by payment of the debt before execution executed, or he might afterwards redeem the estate, if it were by law redeemable. If the debtor might, after levy, alienate the property, why may not a trustee on whom he previously conferred the power of sale, for the benefit of a creditor, dispose of it as the deed directs ? If such a disposition would be legal, should not the purchaser be permitted to interpose his claim of right? But it is unnecessary to consider this question further, as our conclusion upon the first point is decisive of the case.
The judgment of the Circuit Court is re versed, and the cause remanded.
