7 Ala. 53 | Ala. | 1844
— In the P. & M. Bank v. Willis & Co. S Ala. Rep. 770, it was held, that although the statute directed the Court to require the parties to make up an issue, under such rules as it might prescribe for the trial of the question of right, yet the only proper issue in all such cases was an affirmation on the part of the plaintiff, that the property levied on was subject to the execution, and a denial of that fact by the claimant. In the present case, an issue was thus formed, and the claimant was then allowed to plead, that the property was not subject to the plaintiff’s execution, for certain reasons, which are specially stated. The effect of this plea was to prevent a trial upon the general question of the liability of the apparatus, to the satisfaction of the plaintiffs execution, and limit the inquiries to a single point, either of law or fact, according as the plaintiff might elect to treat it. This could not be done by^ny proceeding interposed by the claimant. The statute entitled the plaintiff to a jury trial, if the cause was in Court in a condition to be tried, and the case cited, shows how the' issue shall be framed. Here the Court determined that the levy of the execution did not entitle the plaintiff to a trial of the right of property, and rendered a judgment against him for costs.
It is no answer to this view to say, the facts set forth in the plea, if true, show that the property in question is not liable to the plaintiff’s execution, and that the demurrer is an admission of their truth. A demurrer admits the truth of the facts, if well pleaded, but presents to the Court the decision of their legal sufficiency to bar the action, and the question whether they are interposed in such a manner as to make them available. If the determination be favorable to the party demurring upon either of these points, the plea should be adjudged bad. We have seen that the plea, irrespective of its extrinsic merits, could not be entertained.
In the case cited it appears, that judgments were rendered in the suits commenced by attachment two weeks previous to the levy of the execution, but it was not shown that any proceedings had been had on the judgments. This Court laid no stress upon the proceedings had in the attachment, subsequent to the execution of the replevy bonds, but considering that the effect of these was to withdraw the slave from a liability to seizure and sale, affirmed the judgment of the Court below.
If the special plea and replication state the facts of this case correctly, it differs from Rives & Owen v. Willborne, in tl^jg — > here, the process under which the property was levied on, created a prior lien to that under which the levy had been made, and bond previously given to try the right; there, the claim had been interposed to stop a sale and try the right, upon the ground that the property had been placed in the custody of the law in virtue of proceedings which operated a paramount lien.
By the second section of the act of IS3S, “ relative to the satisfaction of executions,” it is enacted, that “the lien created by the delivery of an execution from a Court of record to the sheriff, shall continue to bind the property of the defendant as between different judgment creditors in the Courts of record in this State, in the following manner, viz : if a term shall elapse after the return of the first execution, before an alias shall be be sued out and delivered to the sheriff, the lien created by the delivery of the first writ of execution, shall be cancelled and of no avail; but if a term shall not have elapsed, and the aliag
The view we have taken of the plea as applied to the present case, will relieve us from the necessity of giving to thp replication a critical examination; and without inquiring whether the plaintiff’s execution exerted a lien paramount to’that of Crawford’s, we will consider the question in hand, upon the hypothesis that such was its effect.
By the common law, the goods of a party against whom a fieri facias issued, were bound as against the parly himself, and all claiming by assignment from, or by representation under him, from the test of the rvrit. The act of 1S07, did not create the right of lien, but rather limited its retrospective operation, by declaring that it should only become effective from the time the writ is placed in the sheriff’s hands. This lien is a right so much respected by the law, that where it once attaches it will not be divested, though the property of the debt- or has been seized under a previous execution. And although the original execution may not have been levied, yet if the plaintiff continues its efficacy by causing an alias, &c., to be regularly issued from term to term, his lien overreaches a fieri facias of a younger date, which has been actually levied, and if in the sheriff’s, hands will be entitled to the proceeds of the sale.
In the case before us, if the plaintiff’s execution first operated a lien upon the estate of the defendant in execution, then they would be entitled to the proceeds of the property in question, if they caused it to be regularly issued as the act of 1828 requires, should Crawford succeed in condemning it. The claimant, by the terms of his bond, stipulated for the return of
The same principles will not apply where the senior fieri facias is first levied, and under' it, proceedings are instituted to try a claim. There it would be no answer for the claimant to say, that the goods had been taken from his custody by a junior execution; and, in such case, if he were unwilling or unable to interpose a second claim, he would be answerable upon his bond if they should bo condemned, and he could not not produce them.
In respect to the case of Rives & Owen v. Wilborne, speaking for myself alone, I would remark that I have bestowed much reflection upon the principle upon which it rests. I have frequently thought and conversed about it since the decision of Hagan v. Lucas, 10 Pet. Rep. 400. I have examined our statutes in respect to the trial of the right of property — I have scanned the arguments that have suggested themselves to me, or have been urged by others, both for and against that case; and am free to declare that on either side they are potent and embarrassing. In favor of it, it is said that the opposite conclusion would be oppressive and sometimes utterly destructive of the rights of the honest claimant; against it, is said, that it enables the debtor by a combination with a third person to interpose a claim through dishonest motives, only to withdraw the property from the just demands of the creditors. In this equilibrium of the argument upon consequences, the safe
. Without stopping to recapitulate, it is enough to add, that the judgment of the Circuit Court is reversed, and the cause remanded.