7 Ala. 660 | Ala. | 1845
— The facts offered to be proved by the sheriff, in this case, in our judgment, are a complete answer to the plaintiff’s motion. The execution issued after the death of Holmes, was entirely void, and of no more effect than waste paper. There could, by no possible contingency, be any thing, real or personal, upon which the sheriff, by virtue of it, could levy. If the deceased judgment debtor, at the time of his death, owned any real estate, that passed at once to his heirs at law, or devisees; and in like manner his personal estate, if there was any, passed to the person afterwards to be appointed his administrator, or vested in his executor, if he left a will, which afterwards was admitted to probate. In England, cases of this description very rarely occur, because, by the common law, goods were bound from the teste of writ, so far as the party and his personal representatives were concerned, and care is generally taken'to make the teste as of a day previous to the death. [Bragner v. Longwood, 7 Term. 20.] But even then, where a writ is tested after the death of the judgment debtor, the execution is irregular, and will be set aside. [Heapy v. Parris, 6 Term. 368.] With us, the statute cuts loose from all the common law doctrine of relation, and directs that writs shall be tested the day they are issued, (Clay’s Digest, 336, § 128,) except in certain cases, where it is necessary to preserve a lien, (Clay’s Digest, 205, §20; Collingsworth v. Horn, 4 S. & P. 237; Caperton v. Martin, 5 Ala. Rep. 217;) and goods, &c. are bound only from the time that the writ is delivered to the sheriff’s hands. [Clay’s Dig. 208, § 41,]
In Collingsworth v. Horn, 4 S. & P. 237, it was assumed by this Court, that an execution issued after the death of the defendant would be irregular,unless alien had attached in consequence of one previously issued. In Fryer v. Dennis, 3 Ala. Rep. 254, an alias execution, where no lien had attached upon the previous one, was quashed as irregular. In Mansony v.
• It will be borne in mind, that the case as presented, is one in which the sheriff could take no action, in any manner whatever, either as to person or property, and that the return of the execution, (if it can be called so,) could affect no one’s rights. Under these circumstances, we repeat, that it was no more than waste paper, and the sheriff does not appear as having committed any breach of duty in relation to it, as thus considered.
Judgment reversed and cause remanded.