6 Ala. 631 | Ala. | 1844
In Savacool v. Boughton, [5 Wend. Rep. 170,] it was declared to be a settled rule of the common law, that a mere ministerial officer, who executes the process of the court having jurisdiction of the matter, and authorised to issue such process in general, or in certain specified cases, is protected in the execution of such process, if it is regular on its face, and apparently within the jurisdiction of the court issuing it. This-case was re'viewed by the court of errors; in Parker v. Walrod, [16 Wend. Rep. 514,] and is regarded as a most satisfactory exposition of the law. It is there admitted, that if the want of jurisdiction appear upon the face of the process itself, the officer to-whom it is delivered, is bound to take notice of it, and can claim no protection from such process when sued for an act done in-executing its mandate. Further, the court say that, where the plaintiff shows title in himself, derived from the defendant in execution before its lien attached thereon, the execution will not afford a defence to the officer, but to make it available against a stranger, he must connect it with a judgment, and then show that the transfer of the property to the person thus claiming iff was fraudulent and void, as against the creditor who had recovered sueh judgment. This is stated as the only exception to the rule laid down in 5th Wendell. The-cases cited by the plaintiff’s counsel, are noticed by the court, and instead of contradicting what is supposed to be the general rule, only- determine, that where the plaintiffs shows a title derived from the defendant before the lien of the execution, in order to its invalidity, the plaintiff must produce the judgment.
Whether a case come within the rule, or what has been called the exception to it, is wholly immaterial as it respects the frame of the plea; in neither case is it necessary to allege that thefi. fa-. was issued pursuant to a valid judgment. The execution, as we have seen, if unobjectionable in itself, will justify the officer in obeying it, and the judgment, when its production is necessary, is only evidence in connection with extrinsic proof, to show that-the creditor’s right to sell the property was superior to the title which the plaintiff has made out. The judgment is not a primary element in the justification of the officer, and can only be made material by the proof adduced by the plaintiff; therefore, upon principle, the pleadings cannot be required to make any averment in respect to it.
It has been said, that á will of real estate, independently of the requirements of d statute, does not need a formal probate to give to it efficacy in fdvor of a devisee; that it operates as a conveyance, propria vigore, and like an ancient'deed, when possession has been consistent with it for a long time, will be presumed to have been executed in the manner it imports. [Ram. on Wills, 3—4; Bagwell v. Elliott, et ux. 2 Rand. Rep. 190; Fetherly v. Wagoner, 11 Wend. Rep. 519. See, also, 3 Johns. Cases, 283; 5 Cow. Rep. 221; 7 id. 374; 6 Serg’t & R. Rep. 223; 1 Har. & McH. Rep. 419; 10 Wheat. Rep. 470; 2 Rep. Const. Ct. of So. Caro. 80; 4 Dev. Rep. 430; 3 Phil. Ev., C. & H.’s notes, 861, 1347, 8.] But .the question is not as to the necessity of a probate in order to establish a will of real estate at common law; it is- whether the legatee of personal prqperty can recover it at law until the will has been proved in the forum provided for that purpose. This question arose in Rex v. The Inh. of Netherseal, [4 T. Rep. 258,] and Lord Kenyon said, “we cannot receive any other evidence of their being a bill in thisnase than such as would be sufficieht in all other cases, where titles are derived under a will; and nothing but the probate or letters of administration with the will annexed-are legal evidence of the will in all cases of personalty” 'This was considered as a correct statement of the law in Armstrong v. Lear, [12 Wheat. Rep. 175,] where it was held, that an administrator' appointed here, could not sue for a legacy bequeathed by a foreign will; because, probate of the will had not-been made. [And the same doctrine isTe-asserted in Tarver v. Tarver, 9 Peters’ Rep. 174. See, also, Pinkerton v. Walker, 3 Hayw. Rep. 223: Howell v. Whitchurch, 4 Id. 49; Pinney v. Pinney, 2 Mann. & Ryl. Rep. 436; 8 Barn. & C. Rep. 335.]
It is needless to'enlarge upon this point,-for it is clear, upon the authorities cited, as well as upon principle, that the plaintiff’s can