58 Ala. 62 | Ala. | 1877
The general rule of law is, that sworn officers, whether judicial or ministerial, are presumed to do their duty; and he who asserts their official dereliction, must prove it, even though such proof be of a negative. — 2 Best Presumptive Evidence, § 348, and authorities cited; Brandon v. Snows, 2 Stew. 255.
But, when a sheriff, having process in his hands for the purpose, fails to levy on property found in the possession of the defendant; or, having levied, discharges the levy, without selling the property, and without realizing the money he is commanded to collect, a different rule prevails. The onus is then shifted to him to show a legal excuse for not levying or selling, as the case may be. — Smith v. Leavitts, 10 Ala. 92; Gresham v. Walker, Ib. 370; Easly v. Walker, Ib. 671; Kelly v. Governor, 14 Ala. 541; Governor v. Baker, Ib. 652; Governor v. Campbell, 17 Ala. 566; Whitsett v. Slater, 23 Ala. 626; Robertson v. Beavers, 3 Port. 385; Union Bank of Tennessee v. Benham, 23 Ala. 143.
The bill of exceptions in this cause, informs us that it contains all the evidence. There is no testimony that Thompson, the defendant in execution, had a family, or that the land in controversy contained his homestead. These are indispensable conditions of a valid homestead claim under section 2880, subd. 4 of the Revised Code of Alabama. — See Kaster v. McWilliams, 41 Ala. 302; 1 Brick. Dig. 906-7, §§ 228 to 231; McGuire v. Van Pelt, 55 Ala.
Under the rules above declared, the judgment of the Circuit Court must be reversed on several of its rulings, not
Tbe debt, to enforce which the execution against Thompson was issued, was contracted before the act of February 19, 1867, became a law. — See Pamph. Acts, 1867, p. 611. That statute was embodied in the Revised Code as § 2884. It provides that, “in addition to the real and personal property now permanently exempted from levy and sale by law, under any legal process, there shall be retained for the use and benefit of every family,' twelve hundred dollars of real estate, including the homestead,” &c. The argument is here made that this act is inoperative as to debts previously contracted, because it violates Article I, Section 10, Subd. 1, of the Constitution of the United States, which declares that “ no State shall . . pass any . . law impairing the obligation of contracts.” This precise question went before the Supreme Court of the United States by writ of error from the Supreme Court of Georgia, in the case of Gunn v. Barry, 15 Wal. 610. That court unanimously decided that, as to debts previously contracted, the provision in the Georgia constitution', which increased the homestead exemption from fifty acres to two thousand dollars in value, impaired the obligation of the contract, and was void.
This question is one which can be carried from any State court of last resort, to the Supreme Court of the United States for review, whenever the State court pronounces in favor of the constitutionality of such statute. In other words, that court has a revisory jurisdiction over this court, whenever such decision is here rendered. We hold that the rulings of that court on such questions are authoritative and binding on us. Such has been the course adopted in Georgia. — Jones v. Brandon, 48 Geo. 593; Chambliss v. Jordan, 50 Geo. 81; Grant v. Gasby, 5 L Geo. 460. In the “ Homestead Cases,” 22d Grat. 266, the same conclusion is reached, in a very able argument by Mr. Justice Christian.
We feel it our duty to consider another question. The judgment against Thompson, on which the execution in this case was issued, was rendered April 21, 1870. This fact, no doubt, was noted in the execution. This was notice to the sheriff that Thompson was then indebted to Wilson. It was neither notice or evidence that the debt, on which the judgment was rendered, existed prior to February 19,1867, the date of the statute we are construing. — Snodgrass v. Br. Bank at Decatur, 25 Ala. 161.
Levying an execution, issued on a judgment rendered in April, 1870, we can not hold that the sheriff was charged with knowledge that the debt on which the judgment was
Eor tbe errors aboye pointed out, tbe judgment of tbe Circuit Court is reversed and tbe cause remanded.
