The exception saved by defendants was to the refusal of the court to admit the deed of March 22, 1877, in evidence, and the first three errors assigned may be considered together.
It is the settled law of Alabama that a judgment in itself imposes no lien upon the property of the judgment debtor, real or personal, but that the issue of an execution, and its delivery to the officer, are necessary to create a lien. Dane v. McArthur, 57 Ala. 448; Carlisle v. Godwin, 68 Ala. 137; Perkins v. Brierfield Co., 77 Ala. 409.
Under section 2871 of the Code of Alabama of 1867, applicable here, executions could be levied on real property to which the defendant had a legal right, or a perfect equity, having paid the purchase money, or in which he had a vested legal interest, in possession, reversion, or remainder, whether he had the entire estate, or was entitled to it in common with others; on personal property of the defendant; on an equity of redemption in land or personal property.
The deed of Morris, of June 14, 1873, to Beebe and Henshaw, 'their heirs and assigns,' conveyed an undivided one-half interest in the lands to the grantees, and vested in each of them an undivided one-fourth interest, as tenants in common. This was so held in Oil Co. v. Henshaw, 89 Ala. 448, 451, 7 South. 760, and that, 'this being the case, although a partnership existed between Beebe and Henshaw, upon the death of the latter the legal title of his undivided one-fourth interest descended to and vested in his heirs, also as tenants in common with each other and with Beebe.'
Defendants conceded legal title in Beebe, but by way of answering the objection to the instrument of March 22, 1877, as on its face lacking in good faith, evidence was tendered to show that the real estate was purchased with partnership funds, though not for partnership purposes. Hatchett v. Blanton, 72 Ala. 423, 435; Pars. Partn. *365.
The evidence in this regard, such as it was, was offered in connection with the question of the admissibility of the deed of March 22, 1877, and the action of the court to which an exception was saved was solely to the refusal to permit that deed to be introduced.
If valid executions were issued and delivered to the marshal as early as January 23, 1877, and, on return, alias executions were issued and duly levied, then the subsequent sale related back, and took the legal title out of Beebe, prior to March 22, 1877; so that the deed of the latter date was immaterial, and there was no error in refusing to admit it.
It is argued that the only executions shown by the record to have been issued on the judgments were those of May 10, 1877, but we do not think so. The executions of that date were alias writs, and the presumption is that they were preceded by others regularly issued. Sellers v. Hayes, 17 Ala. 749; Pollard v. Cocke, 19 Ala. 188. But the fact did not rest upon presumption, for these writs bore the indorsement of the receipt by the marshal, January 23, 1877, of the previous writs; their levy on the property in question, April 5, 1877; and their return, April 6, 1877, for want of time to advertise the sale. And the return of the marshal, covering the date of the receipt and the levy of the prior writs, was duly indorsed upon the alias writs, and certified to by the clerk of the court under his hand and seal. All this was admitted in evidence without objection, and, if defendants desired to raise the objection that the original executions ought to be produced, they should have done so then, when, if well founded, the objection could have been removed.
The Code of 1867 provided that the clerk should issue executions as soon after the adjournment of the court as practicable, within the time prescribed, namely, if the session was 1 week, within 10 days; if 2 weeks, within 15 days; if 3 or more weeks, within 20 days. The day, month, and year of its receipt was required to be indorsed thereon; return to be made 3 days before the first day of the return term, which was the next term after its date, unless issued less than 15 days before court, and then the term next thereafter; and the reason for its nonexecution in whole or in part was required to be stated in the return. Sections 2838, 2839, 2851-2854.
'Sec. 2872. A writ of fieri facias is a lien, only within the county in which it is received by the officer, on the land and personal property of the defendant, subject to levy and sale from the time only that the writ is received by the sheriff; which lien continues as long as the writ is regularly issued and delivered to the sheriff without the lapse of an entire term.
'Sec. 2873. The liens of executions as between different judgment creditors, and between judgment creditors and purchasers from the defendant for valuable consideration, are hereby declared to be: that if an entire term elapse between the return of an execution and the suing out of an alias, the lien created by the delivery of the first execution to the sheriff is lost; but if an alias be sued out before the lapse of an entire term, and delivered to the sheriff before the sale of property under a junior execution, the lien created by the delivery of the first execution must be preferred.'
The regular terms of the circuit court of the United States for the Middle district of Alabama began on the first Monday of November, 1876, and the first Monday of May, 1877; and these writs were issued, delivered, and levied without the lapse of an entire term, as specified in the statute. Carlisle v. May, 75 Ala. 502. According to the settled rule in Alabama, where an execution comes to the hands of the sheriff, the lien attaches, and continues from term to term, provided alias and pluries writs are duly issued and delivered; and while it is so kept alive the lien is, upon levy and sale, paramount to any intermediate conveyance of the debtor. Parks v. Coffee, 52 Ala. 32; Hendon v. White, Id. 597; Childs v. Jones, 60 Ala. 352; Perkins v. Brierfield Co., 77 Ala. 403, 410; Massingill v. Downs, 7 How. 760, 767.
The original executions here had been duly issued and levied, but returned for want of time to advertise and sell. The alias writs were then taken out, and apparently a new levy and sale made thereunder. In some jurisdictions a formal venditioni exponas might have been issued, but these alias writs, with their indorsements thereon of the prior levy, were quite as efficacious, and the sale could be sustained as made under the original or new levy.
In Dryer v. Graham, 58 Ala. 623, 626, the supreme court of Alabama said: 'It rests in the election of the plaintiff in execution to take out an alias execution, or a writ of venditioni exponas. If he desires merely a sale of the property on which a levy has been made, and not of other property, or the acquisition of a lien on other property, a venditioni exponas is the proper writ. The venditioni exponas continues the lien of the execution which has been levied, as to the property on which the levy was made, whether the property be real or personal. The writ is, indeed, merely for the continuation and completion of the original execution. And, if its mandate is for the sale of land on which there had been a previous levy, it not only compels a sale, but confers the authority to sell, and the title of the purchaser has relation to the date of the lien of the execution. * * * A venditioni exponas is in its nature and operation as to the property on which the levy may have been made, an alias execution. It merely commands and authorizes, as to real estate, the completion of the execution already begun.'
Certainly, this sale was none the less valid because there had been a levy of the original writs, and alias executions were issued and levied on the same property.
But it is contended on behalf of plaintiffs in error that no executions could have issued until March 25, 1877, by reason of the memoranda on the judgment records that, 'by consent, execution is stayed until the 25th day of March, A. D. 1877.'
Assuming that the consent for a stay was given by some one acting for the government, although that does not appear, yet, from the fact that executions were issued before the expiration of the time, the presumption would be reasonable-nothing appearing to the contrary-that they were rightly issued, and that either the agreement lacked consideration, or was not authorized, or had been, by mutual assent, annulled, or that the terms of the agreement had not been complied with by defendants.
The supreme court of Mississippi held, in Jones v. Bailey, 5 How. (Miss.) 564, where plaintiffs agreed to stay of execution for a certain time, 'unless defendants consent for its issuance sooner,' and execution was issued without regard to the agreement and property sold, that the presumption was that it issued with the consent of defendants.
The marshal's return on the original writs showed that notice of the levy thereof was given Beebe in writing as required by statute (section 2857), and the fact that he did not complain that the executions had been issued contrary to agreement renders the presumption that they were not obnoxious to that objection well-nigh, if not altogether, unanswerable.
Aside from this, as the executions were in fact issued, and received by the marshal January 23, 1877, the question thus suggested would be whether the executions were voidable, or absolutely void, if the consent for a stay was lawful, and the executions were taken out in violation thereof.
In Freem. Ex'ns (2d Ed.), §§ 25, 26, et seq. (a text-book cited and relied on in numerous decisions of the supreme court of Alabama), it is said that the decided preponderance of authority is in favor of the proposition that the premature issue of an execution is an irregularity merely; that the execution is erroneous, but must be respected, and may be enforced until it is vacated in some manner prescribed by law; that no one but the defendant can complain of it, and even he cannot do so in any collateral proceeding. And, among other cases, Blaine v. The Charles Carter, 4 Cranch, 433, is cited, which was decided by Chief Justice Marshall on circuit, and his decree affirmed by this court, Mr. Justice Chase delivering the opinion. In that case, under an act of congress providing that, 'until the expiration of ten days, execution shall not issue,' certain executions were collaterally objected to on the ground that they were issued within 10 days, and the court said: 'If irregular, the court from which they issued ought to have been moved to set them aside. They were not void, because the marshal could have justified under them; and, if voidable, the proper means of destroying their efficacy have not been pursued.' So an execution issued after a year and a day is voidable, but not void; even the defendant cannot attack it collaterally; and a levy and sale made under it are sufficient to transfer his title. Freem. Ex'ns, § 29. In Brevard v. Jones, 50 Ala. 221, 242, this was so held, and the court remarked: 'It can make no difference if the plaintiff in execution is the purchaser, because the question is not one of notice, but of the status of the execution.'
In Steele v. Tutwiler, 68 Ala. 107, 110, the supreme court of Alabama referred to Morgan v. Evans, 72 Ill. 586, which ruled that an execution was not void, but voidable, where it issued on a dormant judgment after the time limited by statute, and Stewart v. Stocker, 13 Serg. & R. 199, where a similar ruling was made in respect of an execution issued on a judgment confessed prematurely, contrary to the terms of a bond, and the court said: 'In all such cases, though the execution may be erroneous and irregular, it must be respected and enforced until vacated by motion to quash, or in some other manner prescribed by law. Freem. Ex'ns, § 25. And it is the duty of the party seeking to take advantage of irregularities or defects of this character to move with proper diligence, at the earliest opportunity. Undue laches is treated as a waiver of the right, and operates as an irrevocable renunciation of it. Id. §§ 76, 30. And after a delay of seven years in this case, without explanation or excuse, we think the motion comes too late.' And, to the same effect, see Henderson v. Henderson, 66 Ala. 556, 558. Again, it is held that executions issued contrary to agreement between the parties are subject to the same rules as other premature executions. In Cody v. Quinn, 6 Ired. 193, it was decided that a memorandum made on the docket, with the consent of the parties, by the clerk, 'No fi. fa. to issue until October or until ordered,' was no part of the judgment, and if execution were issued before then it was not void. In Townsend v. Fontenot, 42 La. Ann. 890, 8 South. 616, which was a suit to restrain the execution of a judgment recovered in a suit to enforce payment of certain notes, with recognition of a mortgage and vendor's privilege, the judgment contained the following statement, prepared and written by plaintiff's counsel, and inserted by plaintiff's instructions: 'The attorney of plaintiff in this suit declares he has been instructed not to seize or sell said property before the end of the year;' and it was held to operate a stay of execution.
But in the case in hand the judgment records are complete and perfect in themselves, and executions were thereby ordered to issue. The entries as to stay purported to be memoranda of an agreement of counsel, were evidently placed where they were as memoranda merely, and did not form part of the judgments. Even if the entries could be treated as the act of the court, and the executions were improperly issued,-which is not to be presumed, under the circumstances disclosed by this record,-they would not have been absolutely void, and incapable of being validated.
So far as appears, Beebe never took any steps to quash the executions or to vacate the levy, if any ground existed for doing so, and the evidence that they issued and were levied was admitted without objection on the trial. We regard the position now taken on his behalf as destitute of merit. The circuit court properly excluded the deed of March 22, 1877, and, this being so, no error was committed in the charge to the jury.
Judgment affirmed.
Mr. Justice GRAY, who was not present at the argument, and Mr. Justice PECKHAM, who was not then a member of the court, took no part in the decision.
Notes edit
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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