10 Ala. 671 | Ala. | 1846
There is nothing in the record to indicate that the regularity of the levy was controverted in the county court, but the objections were, that it should have been at an earlier day, or on property of some of the defendants in execution, which was unembarrassed, or the liability of which did not promise to be a litigated question. It is difficult, if not impossible to say, from the recital of the facts upon this point, in the bill of exceptions, whether the levy was valid or not. As a general rule, what is necessary to an effective levy upon personal property, is laid down in many cases, some of which are cited by the counsel for the defendant in error. See also, 7 Ala. Rep. 619; 3 Rawle’s Rep. 405-6. Now, although it may be in general essential to a levy, that the sheriff should have the chattels under his power or control, or at least within his view, and must in a reasonable time take them into possession, yet we apprehend that the execution of a forthcoming bond for property subject to seizure, would estop the party from controverting the regularity of the levy. So if, after having declared a levy upon property within his power or control, he commits its
It was assumed in the circuit court, that the levy was made in a proper manner, and the question mainly mooted was, whether it was made in time to relieve the sheriff from the imputation of neglect, and to this inquiry we now address ourselves. In Hallett v. Lee and others, 3 Ala. Rep. 28, the sheriff retained the execution in his hands nearly five months without levying it, and then, about three weeks before the return day, levied it, and took a delivery bond, which was forfeited. Upon a motion against him for failing to make the money, which it was alledged could have been done with due diligence, it was held that the facts showed a clear case of neglect. In Powell v. The Governor, use, &c. 9 Ala. Rep. 36, it was held to be the duty of the sheriff to levy upon property of the defendant of probahle value sufficient to satisfy the execution; but if he levies on lands which ought in the estimation of prudent individuals, to produce that amount, but does not, this furnishes no reason to charge the sheriff; unless actual injury has resulted to other parties from his mistake : Further, he exercises all the diligence required of him, when, after an unproductive sale of land so levied on he makes an immediate levy on other property of value sufficient to satisfy the execution, though not in time to sell before the return day: Again, a sheriff is not required to sell at the first sales-day after the execution is placed in his hands ; but has the discretionary power to sell on any sales-day previous to the time appointed for its return. In respect to the first case cited, there can be no doubt but the facts were such as to establish negligence. The execution in that case was levied on personal property, which the defendant might, or might not, at his election, have produced on the day of Sale, and the failure to do so would necessarily have prevented the making of the money before the execution had lost its
We have then seen that a sheriff is not bound to levy and sell under a fieri facias, immediately upon'its coming to hand, but it is enough if he make the money by the return day of the execution. Here a levy was made in due season to have sold, on property proved to be worth double as much as the amount to be made on the fi. fa. supposing it to have been unembarrassed; and even under the claim which Savory set up, a positive assurance was given that it should sell for enough to satisfy it. And here too, the defendant in execution was not authorized to replevy the property, so that it must have been forthcoming on the day of sale, unless some cause had intervened to prevent it, which the law does not contemplate. The possession of Savory after the levy was the sheriff’s possession — the former being a mere bailee. True, as we have seen, the sheriff would have been answerable for the conversion of the property by his bailee, or for any other conduct which prevented the slaves from being present on the day of sale. But the faithlessness of Savory towards his bailor, cannot, in the present posture of the case be presumed. He did not arrest the sale in an irregular or illegal manner. It may be that his bill discovers no equity upon its face, or its allegations may be untrue ; yet the execution, so iar as legal forms are concerned, has been duly stayed. The sheriff was bound to yield obedience to the injunction ; and under the circumstances, we think it furnishes a sufficient excuse for the failure to make the money.
The facts in this cause perhaps suggest other questions, some of which may be presented upon another trial; but as they were not noticed in the court below, we decline their consideration. Other points are made, and were discussed at the bar, but as they, will not probably arise upon a future trial,
Let the judgment be reversed and the cause remanded.
