Hubbert v. McCollum

COLLIER, C. J. After an examination of the authorities touching the power of the court over its final process, we said, [in Mobile Cotton Press, &c. v. Moore & Magee, 9 Porter’s Rep. 692,] 1. That a party injured by the improper execution of a fieri facias, may obtain redress,' on motion to the court from which the writ issued. 2. That a sale of land will be set aside, where the sheriff is guilty oí a mistake, irregularity, or fraud, to the prejudice of either party, or a third person. 3. So, the misrepresentation or fraud of a purchaser, furnishes just ground for invalidating the sale. In Ware v. Bradford, [2 Ala. Rep. 682,] this court say, “it may be assumed asset-tied law, that a sheriff’s deed cannot be collaterally impeached for any irregularity in his proceedings, or in the process under which he sells. All that is essential in such case, is a judgment, execution thereon, levy, and the sheriff’s deed.” All other questions are between the parties and the officer executing process; and either party aggrieved has an adequate re [225] medy against him for damages. But if the defendant in execution would invalidate the sheriff’s deed for irregularity in the execution of a fieri facias, it must be by a direct proceeding, having that object in view. To the same efFect are the cases of Fournier v. Curry, [4 Ala. Rep. 321,] and Foster v. Mabe, [Ib. 402.] These cases very satisfactorily show,thatthe party to final process, who objects to the manner in which it has been executed, must apply directly to the court from which it issued, either to correct or set it aside. Here, the defendant does not present his objection in thatform, but waits until anaction is brought against him by a purchaser under the execution, and then seeks collaterally toimpeach the sheriff’s deed, by showing an irregularity in the sale and proceedings, preparatory thereto. It has been supposed that the fact- of the plaintiffs’ knowledge of the manner in which the levy and sale were made, should place them in a less favorable attitude, and that the defendant might collaterally impeach their validity. Conceding that the plaintiffs were aware of all the circumstances, and still we cannot conceive that the rule of law we have noticed, would be inapplicable. The reason applies, as well where the purchaser possessed a previous knowledge, as where he was ignorant of the irregularity in the proceedings of the sheriff. In respect to the time when the court should be moved to correct or avoid the execution of such process, it is not necessary, so far as this case is concerned, to determine. We may, however, remark, that the motion should be made within a seasonable time — most regularly, at the first term succeeding the return of the process. We will-not, however, undertake to say, that there might not be circumstances, under which the court should interfere at a subsequent term; especially, if, fhere are sufficient reasons for not having sought its action earlier. Beyond this, the present case does not require the expression of an opinion. # From this view, it results, that the Circuit Court should have instructed the jury, that the sheriff’s deed could not be defeated by any irregularity, either in the levy or sale, under the fieri [226] facias, which was shown by extrinsic proof; or rather such evidence should have been excluded. The consequence is, the judgment must be reversed, and the cause remanded.