Slater v. Alston

103 Ala. 605 | Ala. | 1893

COLEMAN, J.

The appellant, Slater, brought suit in ejectment to recover certain lands described in the complaint. The plaintiff’s title depends upon the validity of the sheriff’s deed. The material facts are substantially as follows: Geoi’ge E. Crawford & Co. recovered a judgment against the defendant Alston in the circuit court of Sumter county, on the 17th day of October, 1889, and on the 7th day of November afterwards, the clerk of the circuit court, issued two executions, one of which was placed ixx the haixds of the sheiiff of Sumter county, and the other sent to the sheriff of Choctaw county. On the 20th day of December, 1889, the sheriff of Sumter county returned the execution received by him, “satisfied in full,” and on that day paid the money into court. Before the return of the execution ‘ ‘satisfied,” by the sheriff of Sumter county, the sheriff of Choctaw county levied the execution received by him, on the lands in controversy, and had the same advertised for sale in a newspaper, published in Choctaw county. Before the day of sale the sheriff of Choctaw county was notified, that the judgment and costs recovered by the plaintiffs in execution had been fully satisfied, but the additional cost which accrued, inconsequence of the levy and advertisement by the sheriff of Choctaw county, not being included in the bill of costs, indorsed on the execution delivered to the sheriff of Sumter county, was not paid, and this additional cost not having been paid by the day advertised for the sale by the sheriff of Choctaw county, he proceeded to sell the lands, for such unsatisfied costs. Slater, the plaintiff, became the purchaser at the sheriff’s sale, and, upon payment of the jmrchase money, the sheriff executed to him a deed. It was admitted as true that the proceedings of the levy under the execution, the advertisement and sale by the sheriff and the deed from the sheriff, were regularon their face, and that the purchaser, Slater, had no knowledge of the satisfaction of the judgment and cost by the sheriff of Sumter county.

In the case of Boren v. McGee, 6 Por. 432, it was held “that an execution issued upon a judgment which had been satisfied, but of which satisfaction no entry is made on the record, is not void, but voidable merely.” This rule has been declared in the subsequent cases of Steele v. Tutwiler, 67 Ala. 110, and Cowan & Co. v. Sapp, 74 Ala. 44, 47. “To authorize a recovery on a sheriff’s title there must be a judgment, execution, levy and sale, and the execution of a sheriff’s deed.” — Carrington v. Richardson, 79 Ala. 101, 104; Ware v. Bradford, 2 Ala. 676.

The question recurs, as to whether the return and satisfaction of the judgment by the sheriff of Sumter was in fact a satisfaction of the execution in the hands of the sheriff of Choctaw county, by whom the sale was made. We think not. It is not denied that the land had been levied upon by the sheriff of Choctaw county, and duly advertised and the cost of advertising had accrued prior to the satisfaction of the execution in the hands of the sheriff of Sumter county, and had not been paid. Section 2908 of the Code requires the advertisement of land for sale under execution,' and section 666 regulates the price to be paid for such advertisement. It was the duty of the sheriff to levy and advertise, and the charges which accrued were legitimate costs. If the sheriff of Sumter county had made the levy and advertised the lands, any payment to him, which did not include such cost, would not have satisfied the execution, so as to prevent a sale for that purpose. The court in which the judgment was obtained and to which the execution was returnable, upon motion and notice and proper showing, was fully authorized to set aside the sale and quash the execution, but unless this was done, the authority of the sheriff of Choctaw county to sell the land, to satisfy the cost not paid, continued in force.— Cowan & Co. v. Sapp, 74 Ala. 44; Ray v. Womble, 56 Ala. 32; Mobile Cotton Press v. Moore & McGee, 9 Por. 679. The sale of the land was voidable upon motion of the defendant in execution, seasonably made in the court to which the execution was returnable, or he might obtain relief in a court of equity, upon proper averments sustained by proof.

Without some order or decree vacating' the sale, the title of the purchaser entitled him to recover the lands. This is the rule in this State, although a different rule prevails in some other courts.

The court erred in giving the affirmative charge for the defendant.

Reversed and remanded.