11 Ala. 431 | Ala. | 1847
An execution issued upon a judgment, after the defendant is dead, is an absolute nullity. It is so wholly void, that a sheriff into whose hands it may come, cannot be ruled for not returning it. [Holloway v. Johnson, 7 Ala. R. 660.] An exception to this rule obtains where an execution has issued in the lifetime of the deceased, then it appears, if there has been no chasm, by the lapse of a term, but the lien has been regularly continued, an alias may issue after the death of the defendant in the judgment. [Collingsworth v. Horn, 4 S. & P. 237.]
This rule is confined in its operation to execution issued upon judgments of courts of record, which are a lien on the personal property of the defendant, from the time they come to the sheriff’s hands. The executions issued on the judgment of a justice of the peace, his not being a court of record, have no such attribute, as it is expressly declared, that they “ shall operate as a lien on the property of the defendant, from the time of the levy, and not sooner.” [Clay’s Dig. 209, § 42.] There being therefore nothing to connect this execution, with those previously issued, it was absolutely void, and no right whatever was acquired by the levy and sale under it.
It is not of any moment, that the administrator had not administered when the pretended levy was made under this void execution; no change was effected in the. title of the property thereby, but the title vested immediately in the ad-ministratrix, upon the grant of letters of administration to her.
Let.the judgment be affirmed.
