DeLoach v. Robbins

102 Ala. 288 | Ala. | 1893

HARALSON, J.

1. While it is true, that an execution should follow and correspond with the judgment on which it issues, yet, justice and reason do suggest, that mere clerical errors or failures to recite the judgment with strictness ought not to avoid the execution; and it is everywhere', so far as we have observed, so decided. And when an execution is offered in evidence to support a sale made under it by a sheriff after levy, and it varies from the judgment in some respects, the question then before the court is, “Did this execution issue on this judgment? If from the whole writ, taken in connection with other facts, the court feels assured that the execution offered in evidence was intended, issued and enforced as an execution upon the judgment shown to the court, then, we apprehend, the writ ought to be received and respected. * * * Where sufficient appeared on the face of the execution to connect it with the judgment, courts have frequently disregarded variances in the names of parties, in the date or in the amount of the judgment.” — Freeman on Judgments, § 43, p. 113, n. 3, and authorities there cited; 7 Amer. & Eng. Encyc. of Law, 123-4, n. 13; Samples v. Walker, 9 Ala. 726; McCollum v. Hubbert, 13 Ala. 282; Steele v. Tutwiler, 68 Ala. 110; Sandlin v. Anderson, 76 Ala. 403; Davis v. Kline, 76 Mo. 310. In the case last named, two executions and the sheriff’s deed thereon recited judgments in the year 1875, while the minutes of the court showed they were rendered in 1876. There being other evidence to show that the executions were in fact issued on these judgments, it was held that the variance was a clerical misprision, and would not invalidate the execution.

2. Where an execution has prematurely issued on a valid judgment, as we have held, it is not on that account void, but only irregular and voidable, and not having been set aside in a direct proceeding for that purpose, a sale under it can not be collaterally impeached ; and, where execution has issued after the lapse of ten years from the date of the last preceding one, it is merely irregular and voidable, and a sale under it, as for such an irregularity, as we have repeatedly held, will be sustained. — Sandlin v. Anderson, 76 Ala. 403; Leonard v. Brewer, 86 Ala. 390; Waldrop v. Friedman, 90 Ala. 157; Olmstead v. Brewer, 91 Ala. 124.

3. Parol evidence is always admissible to point out and connect the writing with the subject matter, and identifying the object proposed to be described. And so, such evidence is admissible to explain away any mere immaterial and not substantive variations between an execution and the judgment on which it issued. — Guilmartin v. Wood, 76 Ala. 204; Corbitt v. Reynolds, 68 Ala. 378; Doe v. Pickett, 51 Ala. 584. And, on still higher grounds, the execution docket of the clerk is admissible, in such connections, to identify and unite a judgment and executions which issued on it, for this is record evidence, such as the law requires to be kept for such purposes among others. — Code., § 768, sub-div. 7.

4. Let the foregoing principles be applied to this case. The two judgments on which the executions issued were, so far as appears, in all respects regular and valid, one in favor of the plaintiff, John DeLoach, as administrator of John Black, at the fall term of the circuit court of Monroe county, 1868, against defendant, -T. J. Robbins, for $684.95, besides costs; and the other, in favor of John B. Colly against the defendant, at the spring term of said court, 1873, for $239.53, and costs. Executions issued, as was shown, on each of these judgments, returnable to the next term of the court after their rendition, respectively. The plaintiff in the second judgment, John B. Colly, died after its rendition, and plaintiff, DeLoach, became his administrator, and, on proof of these facts by affidavit of plaintiff, the clerk of the court thereafter issued execution' on said judgment in favor of the plaintiff, as administrator of said Colly, under which the land in question was sold by the sheriff, and plaintiff became the purchaser, the sale having been made under this and the other execution issued in the Black administration case at the same time.

In the other case — that of DeLoach, administrator of Black,- against the defendant — after the issuance of the original execution, aliases were issued on the 25th of October, 1876, 15th of May, 1887, and 9th of June, 1885. In some of these there were irregularities, some slight and others of a graver character. It is unnecessary to mention them. A sale of the property levied on was made by the sheriff under the last named execution, but when it was offered, and the sheriff’s deed with it, objection was made on account of a variance between the judgment and execution. The plaintiff offered evidence, all of'which was admissible for the purpose, to explain the variance and to show that it was the result of clerical error, and that the execution, as a matter of fact, issued on the judgment in evidence. The objection of the defendant to the introduction of this evidence was improperly sustained by the court. It showed a judgment against defendant, an execution thereon, levy and sale to the plaintiff by the sheriff, and a proper deed from him to the plaintiff, to convey the interest of defendant in the lands. But, if there were any legal objections to the validity of the sale under this execution, alias executions were issued afterwards on both of said judgments— presumably to obviate any irregularities which might have intervened as affecting the first sale, by which it might be set aside — were placed in the hands of the sheriff, together with the execution in the Colly case, were both levied on the same land, which was sold thereunder by the sheriff, and plaintiff again became the purchaser, and the sheriff made him a deed, in all respects formal and duly executed, to convey to him the right and title to the lands as sold under said execution. The only alleged barrier to the validity of this last sale, so far as appears, is, that the execution in the DeLoach judgment was issued on a judgment on which no execution had issued for more than ten years, a fact not sustained by the evidence, but which, if true, did not render said sale void, even as to that execution. A sheriff’s sale, when made under two executions, as in this case, either of which is valid, is sufficient to transfer to the purchaser the defendant’s title to the property sold.— 12 Araer. & Eng. Encyc. of Law, 225, note 4.

5. The bill of exceptions does not purport to set out all the evidence. The greater part of that offered by plaintiff, and on which he rested his right to recover, was excluded by the court; and, on this state of case, the defendant asked, and the court gave, the general charge in his favor. This charge could not have been properly given, if the evidence offered by plaintiff, which was improperly excluded, had been admitted. We can not presume that any other evidence which defendant might have offered, if any, not included in the record, would have cured the error of the exclusion of plain tiff’s evidence, and justified the general charge given for defendant.

Reversed and remanded.