Wyatt v. Stewart

34 Ala. 716 | Ala. | 1859

A. J. WALKER, C. J.

There was no error in allowing proof that Sterrett, to whom the sheriff conveyed the land, was the purchaser, instead of Mazange & Co., to whom the sheriff in his return asserted that the sale was made. The sheriff’s return is not conclusive against the purchaser at his sale. — Jackson v. Sternbergh, 1 Johns. Cases, 153; Mitchell v. Lipe, 8 Yerg. 179; Wheaton v. Sexton, 4 Wheaton, 503; Jackson v. Walker, 4 Wend. 462 ; Ingersoll v. Sawyer, 2 Pick. 276.

[2.] The retention of possession after the sale, by the maker oí a deed of trust, of property sold upon notice at public outcry by the trustee, is not prima-facie evidence of fraud. — Montgomery v. Kirksey, 26 Ala. 172; Maulden & Terrell v. Mitchell, 14 Ala. 814. By this principle, the refusal of the court to give the first charge asked is sustained.

[3.] The second and third charges asked place the liability of the property levied on upon the ground, that the instrument by virtue of which the plaintiff claims title was a mortgage, and that it was not recorded. Notwithstanding the instrument may have been a mortgage, and may not have been recorded, it may nevertheless have been valid against the party, under whose execution the defendant, as sheriff', sold the property. If the plaintiff in pxecution had notice of the mortgage before he acquired a lien, it would have been valid and operative against him, notwithstanding the want of registration. — Smith v. Zurcher, 9 Ala. 208; Daniel v. Sorrels, 9 Ala. 436; Wallis v. Rhea, 10 Ala. 451; S. C., 12 Ala. 646; Jordan v. Mead, 12 Ala. 247. The inefficiency of the instrument against the execution, by virtue of which the defendant levied, was not a necessary consequence of the want of registration. It would, therefore, have been improper to have charged the jury, that the_ instrument, although it may have been a mortgage, was inoperative, merely on account of the want of registration, unless the proof was such as to justify the court in assuming that the plaintiff in execution did not have notice of the instrument before he acquired a lien. — Rowland v. Ladiga, 21 Ala. 9; Dill v. Camp, 22 Ala. 249. It follows, that we must not impute error to the court below, in refusing the charges, unless we can see that the assumption of the want of such notice would have been legitimate.

[4.] The bill of exceptions does not profess to bring before us the entire evidence which was before ihe circuit judge -when he refused to give the charges. There may have been, for aught that we can affirm on the authority of the record, evidence proving, or conducing to prove, actual notice to the plaintiff in execution before he obtained a lien. “We can not reverse, merely because we cannot see that the court below acted correctly. To authorize a reversal, it must appear from the record that the action or ruling of the court below was wrong.” — Duckworth v. Butler, 31 Ala. 164. Here we cannot see, by looking at the record, that the court ought to have assumed the want of notice to the plaintiff in execution, and given the charges asked ; nor can we see, by looking at the record, that the court ought to have refused to make such assumption, and to have rejected the charges asked. According to the rule above extracted from Duckworth v. Butler, we cannot reverse, because we cannot see “ that the action or ruling of the court below was wrong.” The presumption is not to be indulged that the court erred. — Leverett’s Heirs v. Carlisle, 19 Ala. 80 ; Wilson v. Calvert, 18 Ala. 274; Dent v. Portwood, 17 Ala. 242; Kirkland v. Oates, 25 Ala. 465; Barnes v. Mobley, 21 Ala. 238; Doe v. Godwin, 30 Ala. 442.

The judgment of the court below is affirmed.