McCall v. White

| Ala. | Dec 15, 1883

BBICIyELL, C. J.

— The present proceeding was instituted under the statute (Code of 1876, § 3207), which authorizes the court from which the process issued, under which a sheriff makes sale of lands, if he should die or vacate his office without making a conveyance to the purchaser, to order his successor in office to make the conveyance, upon proof of the sale and payment of the purchase-money. The power which the court is authorized to exercise, is in its nature equitable. Before the statute, in such cases, the omission of the sheriff could be remedied only in a court of equity. — Stewart v. Stokes, 33 Ala. 494" court="Ala." date_filed="1859-01-15" href="https://app.midpage.ai/document/stewart-v-stokes-6506410?utm_source=webapp" opinion_id="6506410">33 Ala. 494. And it must be observed, the power is limited to a single case — the failure to make a conveyance. It is not a power to direct and order the reformation of a conveyance, defective because of a mistake common to the sheriff and the purchaser. In the present case, the sheriff promptly executed a conveyance, which was delivered to the purchaser, and was exhibited in the circuit court. If there be in it mistake, or any special defect, it has not been pointed out, nor could its existence now be matter of inquiry.

More than ten years elapsed after the sale, before the making of this motion ; and it does not appear that during this period the purchaser, or those claiming under him have had or claimed possession of the lands. In all analogous proceedings, as in applications for the vacation of a sale of lands under execution, parties are required to intervene with reasonable diligence. Unreasonable and unexplained delay is a positive bar to the interference of the courts. — McCaskell v. Lee, 39 Ala. 131" court="Ala." date_filed="1863-06-15" href="https://app.midpage.ai/document/mccaskell-v-lee-6507128?utm_source=webapp" opinion_id="6507128">39 Ala. 131; Daniel v. Modawell, 22 Ala. 365" court="Ala." date_filed="1853-01-15" href="https://app.midpage.ai/document/daniel-v-modawell-6505008?utm_source=webapp" opinion_id="6505008">22 Ala. 365. If during the period which was permitted to elapse, and for the delay there is no explanation, there has been an adverse possession of the lands, the purchaser has lost all legal remedy for their recovery. In view of the fact, that the specific case for which the statute provides, the failure of the sheriff to make a conveyance, is shown not to exist, and of the unexplained and unreasonable delay in making the motion, we are of opinion the circuit court properly denied it.

Affirmed.