15 Ala. 353 | Ala. | 1849
In Lunsford et al. v. Richardson & O’Neal, 5 Ala. 618, it was decided, that the proper course to be pursued for the purpose of avoiding a forthcoming bond, or defraying the effect of an execution issued thereon, was by motion to the court to which it was returnable. The execution in that case issued against the goods, áse. of John Lunsford and three other persons, and the bond described it as having issued against the goods, &c. of John Lunsford, only; the aggregate of debt, damages and costs which it required to be made was $2,492 50, and the bond states the amount to be $2,743. The court said, “ these discrepancies it is be- , lieved are so great, that we cannot say from an inspection of the execution in the record, that it is the writ to which the bond refers. The misdescription is such, that it cannot be identified with reasonable certainty; the execution being placed out of the way, there is nothing to sustain the bond, and the circuit court should have quashed it.” So in Moffitt and Watson v. The Branch Bank at Mobile, 7 Ala. Rep. 593, it was held that a judgment and execution against Elisha Moffitt and another person, will not sustain a forthcoming
If an execution be issued in the lifetime of the defendant, the lien may be continued after his death by an alias oxpluries Ji. fa.; but if there be a chasm by the lapse of a term during which there was no execution, in the officer’s hands, an alias cannot issue, but the judgment must be revived by scire facias against the personal representative. Bond, Adm’r v. Dennis. 6 Ala. Rep. 55. Although there be a plurality of defendants in the judgment, the rule will be the same in respect to the one who is dead. Jones, adm’r v. Swift, 12 Ala. Rep. 144. Where a defendant, against whose estate a fi. fa. is sued out, dies after the judgment has been injoined, his lands are not subject to levy and sale under an‘'execution issued after his death, upon the dissolution of the injunction. Abercrombie v. Hall, 6 Ala. Rep. 657. But the mere error in an execution, for which it is quashed, does not of itself set aside, a sale of land made under it; nor should the sale be set aside, if the purchaser without notice of the irregularity, has paid his money and obtained a deed. Chambers v. Stone & Pope, 9 Ala. Rep. 260.
The cases of Boyd, adm’r v. Dennis, and Jones, adm’r, v. Swift, supra, and several others in this court, which determine that the lien of a fi. fa. may be continued by an alias execution issued after the defendant’s death, apply alone where the personal estate of the debtor is sought to be reached. See Lucas v. Doe ex dem. Price, 4 Ala. Rep. 679; Mansony & Hurtell v. The U. S. Bank, et al., Id. 735; Stewart v. Nuckals, at this term. These latter citations show that the rule has no application as it respects lands; See further, Hubbert and another v. McCollum, 6 Ala. Rep. 221: Smith & Bowdon v. Knight, 11 Ala. Rep. 618; Del Barco v. The Br. Bank at Mobile, 12 Ala. Rep. 238; Moore & Cocke v. Bell, 13 Ala. Rep. 459; McCollum v. Hubbert and Caple, Id. 282; Martin v. The Br. Bank at Decatur, at this term.
In the case at bar, the action was against Spencer Roane,
A forthcoming bond, when taken in conformity to law, is to have the force and effect of a judgment, and an execution may issue on it; but to support an execution, it must be such as the statute requires. Upon such a bond, which will not authorize an execution to issue against the parties to it, an action is sometimes maintainable at the suit of the obligee. Whitsett v. Womack, 8 Ala. Rep. 466; Meredith v. Richardson & O’Neal, 10 Ala. Rep. 828. If however, the bond be so defective that the force and effect of a judgment cannot