1 Stew. 72 | Ala. | 1827
delivered1 the opinion of the majority of the Court.
The object of this case is to determine to whom Wm. M“'Broom, late sheriff of Madison county, shall pav a sum of money made by a sale of the property of one Egbert Harris; which was levied on and sold by virtue of two executions, one in favo: of said Simon Turner, and trie other in favor of the said Francis E. Rives the amount of the mo-nev being insufficient to satisfy both. The case agreed is as follows, viz: “At the fall term, 1821, of the Madison Circuit Court, said Francis E. Rives, obtained a judgement agamst Egbert Harris, for the sum of $4200 debt. §2033 damages, and the costs of suit. On the 6th day of October, 1821, execution for the amount of the judgement was placed in the hands of the sheriff of said countv, returnabh to the next April term of said Court; and whilst said e.xecuti n was in the hands of the sheriff, •said Rives employed Messrs Kelly and Hutchinson as-
It is also agreed, that Simon Turner is to be considered a party, although it is strictly a motion against the sheriff alone ; and that either Rives or Turner may appeal, or sue out a writ of error.”
I l ave copied the case agreed, as it is difficult to com-pren- ¡he. statement of facts satisfactorily. The Circuit Cot.>. adjud: ed that the money m the sheriff’s hands, or so much of it as would satisfy Rives’ execution, should be paid to him. Turner and M‘Broom have sued out.
The case naturally presents two points :
First, Whether a f. fa. returned nulla bona, has any, and what effect on the property of the defendant, upon suing out an alias fi. fa. after a term has intervened between the return of the first, and the issuance of the second?
Second, Do the facts in this cause present any evidence of actual or constructive fraud on the pari of Turner ?
A third point has been made by the defendant in error, viz : That the legal title to the negroes was, by the deed of trust, vested in the trustee, and although the deed might be void, as to third persons for the defect in its authentication, it was in full force between the parties, and no execution sued out on behalf of the cestui que trust on a judgement at law, for the debt, intended to be secured by the deed, could be levied on the property conveyed by it.
The first question turns entirely on the construction of the 8th section of the act of 1806, entitled “ an act concerning executions, and for the relief of insolvent debtors.”
At common law, an execution bound goods from the teste. By the statute, it is provided that such lien shall exist only from the time the execution is placed in the hands of the sheriff, who is required to endorse it, that the time may more clearly appear. This change of the law has been adopted not only in England, (whence we derive the foundation of almosi the whole superstructure of our jurisprudence,) but in a great maj rity of the states of this union. In forming a conclusion on this su- p.ct, we have the aid of great and learned men, ol both hemispheres.
The case of Edwards against Harben,-
Upon the best consideration therefore, which I can bestow on this subject, my conclusion is, that suing out an alias execution, and delivering it to the sheriff, can have no effect in continuing a lien of a prior execution which has been returned. Nor do I apprehend any evil consequences from this, as it can never be material, which of two bona fide creditors recovers his debt. But a majority of the Court are not satisfied to go thus far. It is the opinion of the majority, that where there is negligence in the plaintiff in not regularly suing out his execution from term to term, an execution on a younger judgement,
On the second point there can be but little difficulty. I rannot percebe the slighest reason for charging actual fi and. After Kelly and Hutchinson were employed, every nei essary act on beb If both of Turner and of Rives, appears to have been performed by them ; they were honestly pursuing Turner’s rights, when the agent of Rives first called upon them. They distinctly informed him of 'heir situation, of t'-e duties they owed to Turner, and of their belief that his debt would have a preference ; yet he chose to employ them. When they af-terwards discovered that Turner’s deed (the flaw in the authentication off which they had overlooked) was defective, and probably void, at least, as to third persons, it was their duty to use some means by which he might, if possible, be placed in as good a situation as when he confided his business to them. They had advised him that his deed was good, and his recovery certain. Had they then informed him that he must resort to his legal remedy, he might before this have had his judgement. To repair as much as possible the effect of their own error, they immediately obtain a confession of judgement from Harris in favor of Turner, and sue out execution thereon. There is no intimation in the agreed case, that Rives considered Turner’s deed of trust to be fraudulent; it was at las- abandoned, not because it was without consideration, or for any other reason affecting the honesty of the transaction, but for an unfortunate omission, not at all affecting the justice of the case. It is believed that there is abundant evidence of the sufficiency of the consideration for the judgement'that was confessed; nor is there any fraud in the sheriff's being directed to leave the ne-groes in the hands of the persons who had them in possession. It could not be intended to favor the defendant to the execution : he had no control over them. They were held by persons who claimed title. Turner might in good faith, prefer to levy on them to secure as far as possible a preference, and fear the responsibility which would be incurred by taking them from the possession of those who then held them. It may have been his object to endeavor to force a compromise, and in this way, the return of the execution before the sale, may also be rationally accounted for. After the levy, the property was vested in the sheriff, and there continued until the sale under the venditioni exponas.
The last point presented has, I acknowledge, produced with me some difficulty. It is certainly a rule of law, that conveyances which are void as to third persons, may yet be good between the parties.
It is the opinion of a majority of the Court, that the judgement of the Court below should be reversed, and that Turner’s execution should be first satisfied.
As to Turner’s equitable security under the deed of
To come directly to the point which I conceive to be presented for consideration. I hold that an execution, from the time it is delivered to the sheriff, acquires a lien on the personal chattels of the defendant, which is continued as long as the execution is kept alive by renewals,that after an execution is returned, it loses its active energy, but does not lose its binding efficacy on the defendant’s property; that priority must always be given to the elder execution, if its lien has been so kept alive, although the money has been made by levy and sale under a youngerexecution. This is clearly the doctrine of the common law, sustained' by judicial decisions, of great respectability in some of the states of the Union. It has been so settled in South Carolina, and the decisions in New-York are not to the contrary ; and indeed I never before heard this doctrine controverted in a court of justice. The able arguments of the counsel, who cont-mded against it in this case, did at first, compel me to hesitate ;"but on reflection, I am constrained to adhere to the principles which I have always heretofore considered a.- the law of the country. The only authorities cited, which are directly against this doctrine, are from Virginia and Kentucky. F or the Judiciary of these States, I have thehighi st respect. But authorities from one or two States, should not govern us, in opposition to the well established principles of the common law, which, so far as consistent with our local'institutions and peculiar form of government is, as-I understand, the law of this State. To know correctly what is the common law, while we do not disparage the judicial decisions made in our sister States, we ought also to resort to the decisions of the eminent tribunals of that country, from which we have derived the common law. A recurrence to these decisions wilt shew that my opinion, is well supported. Rives’ execution was older than Tur-»
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