90 Ala. 157 | Ala. | 1890
-The present bill is exhibited to redeem a tract of land from mortgagees in possession. By appropriate allegations, it anticipates a defense resting on the acquisition of an independent title by purchase at a sale made under a venditioni exponas. The order of sale was made by the Circuit Court of Tuskaloosa, on a judgment rendered by a justice of the peace against complainants’ ancestor, an execu
The ten years within which a mortgagor may redeem from his mortgagees in possession not having elapsed in this case, as is manifest from the averments of the bill, we are unable to see what relevancy the inquiries as to laches, delay, acquiescence for years, &c., raised by the demurrer, can have to any material issue presented by the record. It seems clear that, if the sale under the order of the Circuit Court was merely irregular, and hence voidable only, it can not be drawn in question upon a collateral.attack, such as this bill attempts, however promptly made, and whether made by the heir or ancestor ; and on the other hand, if that sale was void — not merely irregular, and voidable only on direct assault — we apprehend that no delay, laches, or acquiescence, short of ten years in duration, would operate to defeat the right of redemption now asserted by complainants. Counsel on either side recognize the immateriality of these inquiries, and address themselves mainly to the question of the validity of the sale; and that question alone, we think, need be decided.
The judgment against complainants’ ancestor was rendered bjr the justice on the 26th day of January, 1878. Execution was issued January 29, 1878. The levy was made on April 10, 1878; seventy-one days after the teste of the writ, and sixty-eight days after the writ might have regularly issued.
Upon these facts, two contentions are predicated by the appellants. First, that the sale was void, because the execution was issued before the lapse of five days after judgment, as
The other position taken by the appellants is, that the execution was levied after the return day fixed by the statute. The law then in force was the same as the present statute, as to the limit of time within which the execution from justices’" courts should be made returnable. — Code, 1876, §§ 3627,3648. And we apprehend that, if there should be an omission to have the return day expressed in the face of the writ, it would be. held to be returnable on the last day to which the justice in his discretion might have made it run; the principle involved in such a contingency being the same as arises when a day beyond the extremest limits of discretion, or a day which is. past, is specified, and holds the officer to the duty of execution and return within the statutory period, regardless of the language of the writ.—Samples v. Walker, 9 Ala. 726; Wofford v. Robinson, 7 Ala. 489; Freeman on Executions, § 44. But, whether any day or a proper day be specified or not, the writ in no case can be kept alive in the hands of the officer, after the latest date at which the statute requires it to be returned. The writ in this case, whatever time was expressed on its face as the return day, or whether any time was so expressed — and" the record does not enlighten us on this point — could not be levied after the lapse of sixty days from the 29th of January,. 1878, and the levy which was in fact made on April 10, 1878, beyond the latest possible return day, was absolutely void. Morgan v. Ramsey, 15 Ala. 190; Smith v. Mundy, 18 Ala. 182; Freeman on Executions, § 106; Bank v. Reid, 3 Ala, 299; Bordan v. McKinnie, 15 Amer. Dec. 519, n. 522; Barnard v. Stevens, 16 Amer. Dec. 734.
The levy upon which the order of sale made by the Circuit Court was predicated being void, that court was without jurisdiction, its order was likewise void, and the sale and conveyance by the sheriff to defendants’ grantors passed no title into-them.—Jones v. Calloway, 56 Ala. 46.
The decree of the Chancery Court is reversed, and a decree will be here entered overruling all the demurrers sustained below.
[Reversed and rendered.