Savage v. Forward

GOLDTHWAITE, J. — Under the circumstances of this case, the question does not arise in relation to the conflict of right between the sheriff and constable. Whatever may have been the rights of the different creditors, under their respective levies, they, as well as the debtor, seem to have acquiesced in the sale made by the constable. It is a creditor subsequent in point of time, to either of those who had previously levied, who is now seeking to set aside the sale. It was held in this Court, at a very early period, that a sheriff’s sale was valid, although the statutory notice had not been given, Wright v. Spencer, 1 Stew. 576, and such is now the settled law of this State. [Ware v. Bradford, 2 Ala.Rep. 676.] Hence, we conclude, that the present plaintiff cannot dispute the validity of the sale, made by the constable, on account of any irregularities, either in the levy or manner of selling. 2. With respect to the admission of the constable’s return as evidence, to the jury, we can perceive no error. Whether further evidence from the constable, or some other person, of the actual sale, was not requisite, is a question not raised on the record. The return of the execution was proper evidence, so far as it went. 3. It is not stated in the bill of exceptions, in what way it became material to inquire into the motives of the claimant in [466] suing out execution, immediately after obtaining his judgment, and, therefore, we cannot determine that the instruction given was erroneous : prima facie, the motive of the creditor could have no influence on the subsequent sale, and although such an inquiry, under certain circumstances, would have been proper, as, for instance, a fraudulent combination to secure the property from other creditors, these should have been made to appear on the bill of exceptions. It falls within the rule, that when evidence is prima facie immaterial, its relevancy should be shown. We think there is no error, and the judgment is affirmed.