| Ala. | Jul 1, 1898
Hall and Farley, trustees, recovered a judgment against appellee, Griffin, in a real action, at the fall term of the circuit court of Pike county, for the land sued for and damages for the detention. Hall and Farley claimed title by purchase at sheriff’s sale under judgment and execution against one Foreman. They introduced the judgment against Foreman, rendered on November 2, 1893, the sheriff’s deed dated October. 21, 1895, and three several executions issued upon said judgment. There was a lapse of an entire term between the issuance of the second and third executions — the third being the one under which the sheriff sold. The defendant in the action, Griffin, claimed under a. deed executed to him by said Foreman on March 6, 1893. This deed was never recorded, and there is no averment that Hall and Farley, or either of them (who were plaintiffs in the'judgment as well as purchasers at the sheriff’s sale thereunder), had any notice of it, actual or constructive, at the time .of the recovery of the judgment. They received notice, however, before, the issuance of the execution, under which the land was sold. ..
On the trial of the real action, when plaintiffs intro-’ duced the first and second executions, defendant ob--' jected because of the chasm in the execution lien above stated.
This bill is filed for relief against .said- recovery at law. For an equity justifying such relief the bill makes the following allegation: When the objection to "the introduction of said executions was made, “the counsel for the plaintiff in the ejectment suit offered in. evidence an execution in another case of. Hall & Farley v. Foreman issued from the same court which supplied the missing link as claimed by said counsel. Complainant avers that he and.his counsel were both surprised by the offering of this execution, and verily believed at the time that it was a valid execution and had the effect to give a lien under said executions beginning on the 13th day of December, 1893, whereupon complainant’s counsel withdrew his objection to said, first two executions, and made no further resistance to the introduction of-said two executions or the lien set up by said Hall &
The chancellor overruled a motion to dismiss the bill for Avant of equity.
We do not think the allegation above copied approaches a charge'of fraud, accident or mistake unmixed with negligence on the part of the defendant in the real action. To render it sufficient by amendment would necessarily require the striking out of what is now alleged, and the insertion of some other matter directly opposed to the truth of the allegation so stricken, or to require the addition of some entirely neAv and independent fraudulent act, or representation on the part of plaintiffs or their counsel, which does not come within any intendment of the bill in its present frame. The charge, in effect, simply is that plaintiffs’ counsel, during the trial, introduced a document claiming that it supplied the missing link in the execution lien. The counsel made no representation of fact to defendant or his counsel for them to rely on, but merely claimed before the court that the paper introduced supplied the missing link. The defendant yielded to this claim and withdrew his objection to the proposed evidence. Whether or not the document was what plaintiffs’ counsel claimed it to be was open, by the records of the court then and there exposed, on call, to the inspection of any party to the suit. By inspection, any party could have ascertained to a certainty what constituted the record in the particular cause. If the document offered was not a part of the record it would have been disclosed upon such simple inspection. Indeed, it does not appear that defendant, or his counsel, even inspected the document itself. No one, as we have said, made any representation to defendant or his counsel of what the document Avas. The defendant (if, indeed, it had been a material matter) was guilty of negligence which he can not get over, Avithout directly contradicting his oavu allegation, or charging some misleading fraud on the part of plaintiffs or their counsel, practiced upon defendant to lull him into repose, by relying upon what the fraudulent
But the foregoing discussion is really immaterial, since it was unnecessary for the plaintiffs to show an unbroken execution lien from the rendition of the judgment. The statute, Code 1896, §1005, as it has been construed in many decisions of this court, beginning with Wood v. Lake, 62 Ala. 489" court="Ala." date_filed="1878-12-15" href="https://app.midpage.ai/document/wood-v-lake-6510344?utm_source=webapp" opinion_id="6510344">62 Ala. 489, and coming down to the last appeal on said real action between these parties (115 Ala. 647" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/griffin-v-hall-6517248?utm_source=webapp" opinion_id="6517248">115 Ala. 647), protects judgment creditors who at the times of recovery of their judgments had no notice, actual or constructive, of the prior deeds. There was no proof tending to show that plaintiffs in the real action had notice of the prior unrecorded deed, hence the introduction of the first and second executions and the document Avhich plaintiffs’ counsel claimed to supply the missing link Avas unnecessary to the plaintiffs’ right of recovery.
Reversed and decree here rendered dismissing the bill for Avant of equity.