Sims v. Eslava, 74 Ala. 594

74 Ala. 594 | Ala. | 1883

BBIOKELL, O. J.

— A sale of lands under execution, or other legal process, issuing after the death of the defendant therein, unless it be issued in pursuance of the statute (Code, of 1876, § 3213), in continuation of a lien acquired and kept alive in the life-time of the defendant, is a nullity, passing no title to the purchaser. — 1 Brick. Dig. 893, § 43; Hendon v. White, 52 Ala. 597. The reason is obvious; there must be real parties to all process, original or final. Upon the death of the defendant, by operation of law, the title to his lands descends to his heirs, if he dies intestate; or, if ho dies testate, devolves upon his devisees. The sale, of consequence, affects the title of new parties, who are entitled to a day in court, that they may, if they can, show cause against its divestiture.

The statute referred to declares, that “a writ of fieri facias, issued and received by the sheriff during the life of the defendant, may be levied after his death, or an alias issued and levied, if there has not been the lapse of an entire term, so as to destroy the lien originally created.” Liens on lands, or on personal property, the statutes attach only to executions; and they take effect only within the county to which they are issued, and from the time the sheriff receives the writ. The continuance of the lien depends upon the regular issue and delivery of executions to the sheriff, from term to term. — Code of 1876, § 3210. If the execution is kept alive by the diligence of the plaintiff, that the death of the defendant shall not work a chasm in the proceedings, or a destruction of the lien, is the purpose of the statute; but, if it be not kept alive, it is equally the purpose of the statute that the lieu shall be lost, and the death shall operate its usual, ordinary consequence, — an abatement or suspension of the proceedings.

That the venditioni exponas, and the sale of the lands under it, is a nullity, conferring no title upon the purchaser, in consequence of the death of the defendant at the time of its issue, is not denied, unless its issue and the sale were authorized' by the statute which provides, that the lien on property levied on, and claimed as exempt, shall not be impaired or destroyed by the pendency of the claim or contest, nor by its termination, if found in favor of the plaintiff. — Code of 1876, § 2835. There was no termination of the contest in favor of the plaintiff: — no determination that there was a lien upon the land. The abatement of the contest by the death of the defendant and claimant was not a determination in favor of the plaintiff — all that was decided or declared was, that the proceedings were suspended from the want of a proper party capable of conducting them to a final determination. The event, or condition, upon which the continuance of the lien and authority depended, had not happened. The lien of executions, the preservation or loss of them, the claim of exemption, and its contestation,' are all strictly statutory, and with the requirements of the statute there can be no dispensation. There are, manifestly, just reasons for the preservation to a plaintiff of a lien established by the-judgment of a court of competent jurisdiction, interrupted in its enforcement by legal proceedings instituted against him, which do not apply when there has not been, or can not be, an establishment of the lien by such judgment.

There is no error in the record, prejudicial to the appellant, and the judgment is affirmed.