Deloach v. State Bank

| Ala. | Jun 15, 1855

CHILTON, C. J.

It may be conceded, in this case, that tbe delivery bond, on which 'the execution purports to have issued, is utterly void, and that the execution, so far as it depends on it for validity, is of no force ; and yet the concession avails the appellant nothing, for the reason, that the execution is amendable. It sets forth the true amounts of judgment, damages and cost, and the parties to the same, as well as the date of the rendition of said judgment; and commands the officer to levy these sums of property of the defendants, all of whom are properly named, except the surety upon the bond, whose name may be stricken out. Being thus specific, it may well be amended, and rest upon the judgment, although the bond be cast aside. — Cawthorn v. Knight, 11 Ala. 512" court="Ala." date_filed="1847-01-15" href="https://app.midpage.ai/document/taylor-v-paullin-6503238?utm_source=webapp" opinion_id="6503238">11 Ala. 512 ; McCollum v. Hubbert, 13 ib. 282. Although a wrong name is introduced upon the face of the execution, this should not vitiate the process, as to the parties against whom it should and does properly issue. It would be erroneous to quash it for such defect. — Sheppard v. Melloy, 12 Ala. 561" court="Ala." date_filed="1847-06-15" href="https://app.midpage.ai/document/sheppard-v-melloy-6503455?utm_source=webapp" opinion_id="6503455">12 Ala. 561; Thompson v. King, 15 ib. 341. We conclude, therefore, that the execution, purporting' to be issued as well against the surety on the delivery bond as against the defendants to the judgment, is, as to West, whose land was levied on, and who was one of the judgment debtors, neither void nor voidable, but valid and effectual, conferring upon the sheriff full power to make the levy.

The view which we take of this case renders it unnecessary for us to discuss the validity of the levy as endorsed upon the process. The proof clearly conduced to show that, at the time of the levy and sale, the tract of land owned by West Neal, and on which he then resided, embraced two hundred and eighty acres. Two hundred and forty of these were levied upon and.sold ; but no data are furnished, either by the deed or the parol proof, by which it may be determined what land was sold. The quantity tobe taken from the tract is given ; but out of what part of the tract it is to be taken, it is impossible to determine. This uncertainty could not be remedied by the subsequent sale of forty acres by Neal, as the agent of Miss Williams; nor by the concession made by the plaintiff’s counsel, that the forty acre tract thus sold was not sought to be recovered. We must look to the tract as it existed when sold, It then belonged to Neal, — lay in one body, and consisted, as we have said, of two hundred and eighty acres; so that the question of uncertainty as to the land sold still recurs.

The rule, which forbids the sheriff to sell any land which the creditor cannot enable him to designate with reasonable certainty, meets our entire approbation. It is required as well to prevent the sacrifice of real estate, by enabling bidders to know what they are buying, as to prevent frauds and speculation in such sales. — -Jackson v. DeLaney, 13 Johns. E. 536. The fourth charge which was asked by the counsel for the defendant below, and refused by the court, distinctly presented the question, whether a sale by the sheriff of two hundred and forty acres, out of a tract of two hundred and eighty acres, and which afforded no means of distinguishing the land sold from the portion hot sold, could be supported. The charge was, “ that if the jury believed that Neal owned two hundred and eighty acres in a body, they could not tell which two hundred and forty acres were sold; and if so, they should not find anything.” Applying this- charge to the evidence, we think it was correct, and should have been given.

As this point must reverse the case, and will probably be decisive of it upon another trial, we deem it unnecessary to notice the other questions raised by’the assignment of errors.

Judgment reversed, and cause remanded.