15 Ala. 18 | Ala. | 1848
Lead Opinion
By an act passed in 1835, it is enacted, that when any execution shall have been issued on any judgment, &c., within a year and a day after the rendition of such judgment, &c., which shall not have been returned satisfied in full, it shall be lawful at any time thereafter to issue execution thereon, without suing out a scire facias, or any process to revive the same. Further, when an execution shall have been sued out on any judgment, See., within a year and a day from the rendition thereof, and not returned satisfied in full, such judgment, See., shall not afterwards be presumed to be paid or satisfied, unless payment or satisfaction be entered on the record of the court in which the same shall have been rendered, &c., or unless no execution shall have issued for the space of ten years. Clay’s Dig. 206, § 28.
The terms of this statute are too explicit to leave room for controversy. So far from requiring the execution issued within a year and a day to be returned “no property found,” or other equivalent return to be made, it is expressly declared, that the fact of satisfaction must be affirmed by the return; and if the execution thus sued out is not returned satisfied in full, it is competent to issue another, any time within ten years. It may then be conceded, that as the time prescribed by the statute had not elapsed between the issuing of the first and second execution of the plaintiff in error, the latter was regularly sued out.
Upon this hypothesis, the question arises, whether the second execution derived any additional potency from the first, so as to continue the lien of the judgment from the period of
It has been supposed from what was said arguendo in the opinion of a majority of the court, in Wood v. Gary et al. that the interference of the plaintiff should be fraudulent in fact, in order to impair the lien of the suspended execution ; and this conclusion, it is contended, is enforced by the Br. Bank at Huntsville v. Robinson, 5 Ala. Rep. 623, and Tur
If then, the lien of first the execution was destroyed by the direction of the plaintiff to hold it up, no consequences prejudicial to the defendants in error would result from its having issued. But it would effect no purpose as against them— being as we have seen fraudulent in law, and of consequence void. In determining the superiority of the respective liens, the plaintiff in error stands precisely in the predicament as if no execution had issued in his favor until the levy of the defendant’s^. fa’s. This being the case as against the defendants, his judgment would be dormant and inoperative by the failure to sue out a valid execution within the year and a day, and though his judgment was prior in time, its collection would be postponed. See Conard v. The Atlantic Insurance Co. 1 Pet. Rep. 386; United States v. Morrison, 4 Pet. Rep, 124; Porter v. Cocke, Peck’s Rep. 30; Moliere v. Noe, 4 Dall. Rep. 450; Kemper v. Hock, 1 Watts’ Rep. 9; U. S. Bank v. Winston’s Ex’r, 2 Brockb. Rep. 252; Jackson v. Knight, 4 Watts & Sergt. Rep. 412; Burney v. Boyett, 1 How. Rep. (Miss.) 39; Grand Gulph v. Henderson, 5 Ib. 292; Michie v. Planters’ Bank, 4 Ib. 178; Lucas v. Stewart, 3 Smedes & Marsh. Rep. 231; Pickett v. Doe, 5 Ib. 470; Mansony & Hurtell v. The U. S. Bank and Assignees, 4 Ala. Rep. 735.
It is stated in the bill of exceptions, that the first execution sued out by the plaintiff in error, has never been returned, “but was held up by the plaintiff, or is still in sheriff’s hands.” If we are to understand by this, that the proof ■showed either that the plaintiff was active in preventing the mandate of his fieri facias from being executed, or that the sheriff mero motu failed to make the money thereon, our conclusion must be the same as if the positive interference of the plaintiff had been proved. It devolved .upon the circuit court to determine which of these alternative facts was es
Concurrence Opinion
Although I agree with the court, that the judgment in this case should be affirmed under the facts, yet I cannot assent to the proposition, that the lien of an older judgment creditor, on the real estate of the defendant, will be postponed in favor of a junior, on the ground alone, that the sheriff has been instructed by the plaintiff in the elder judgment, not to sell uhder the execution issued thereon, or because the plaintiff has held it up, and declined to have the land sold. If the plaintiff in the older judgment has a valid execution in the hands of the sheriff; at the time of the sale under the junior judgment, he is certainly entitled to have his older lien satisfied, and has priority over the junior judgment creditor. And although the plaintiff may have, from time to time, previously ordered a stay of the sale, or a return of the execution, this, in my opinion, will not postpone his lien on the real estate of the defendant, in -favor of a junior judgment creditor.