Branch Bank at Montgomery v. Curry

DARGAN, J. Whether there is error in the decree of the chancellor, or not, depends on the question, whether the bank has lost the lien created by the judgment, on the land described in the bill. In the case of Campbell v. Spence, 4 Ala. Rep. 543, this court held, that if an execution be levied on the personal property of the defendant, and a forthcoming bond is taken by the sheriff, the lien of the judgment, on the real estate of the defendant, is not thereby lost; and after the forfeiture of the bond, the plaintiff may sue out a new execution on the judgment, if he elect to do so; and that the lien of the elder judgment, would not be postponed, in favor of a junior judgment, on the land of the defendant. And in 8 Ala. Rep. 759, it is said, that if goods are levied on, and a forthcoming bond is taken, which is forfeited; or if they be removed by the defendant, the plaintiff may have a new execution on the judgment. The same principle is recognized in the case of Bumpass v. Welch, 9 Porter, 201. In the case of Hopkins v. Land, 4 Ala. Rep. 427, an execution had been issued on a judgment against three, and levied on the property of one of the defendants, and a forthcoming bond taken, which had been returned forfeited — an alias execution was issued on the judgment, and the land of another [308] defendant, who had not joined in the bond, was sold. Ejectment was brought by the purchaser at sheriff sale, and the defendant insisted, that the judgment was satisfied by reason of the previous levy, and the forfeiture of the forthcoming bond. But the court held, that there was no satisfaction of the judgment, and in the opinion, Judge Goldthwaite says, “ it has never been pretended, that the rights of the plaintiff are affected by taking a forthcoming bond, if its condition has been complied with, and we cannot perceive why a non-compliance with the condition, should impose on the plaintiff the necessity of resorting to a new remedy.” It is true that he expressly waived the consideration of the question, whether the lien was affected by the bond, and the return of forfeiture; yet it is evident, that if the plaintiff had a right to an execution on his judgment, notwithstanding the bond, the lien of the judgment was not lost. And in the case of Campbell v. Spence, which was decided at the next succeeding term, the question arose, how far the lien was affected, or whether the levy, and taking the bond, would postpone the lien, in favor of a junior judgment; and it was held, that the lien continued on the land of the defendant, and that a junior judgment creditor, could not claim priority in the distribution of the proceeds of the land, by reason of this levy, and taking the bond for the forthcoming of personal property. These authorities are conclusive to show, that the levy of an execution on personal property, and the taking of a forthcoming bond, by the sheriff, although the bond be forfeited, does not affect the lien of the judgment, on the land of the defendants. It is true that a different rule prevails in several other States, but after the best reflection we have been able to bestow upon the subject, we would not adopt a different rule under our statutes, if the question was res integra — for it is made the duty of the sheriff, to take a forthcoming bond from the defendant, with good security, and to let the property remain with him; this is for his convenience and benefit. If there are several defendants, and the levy is made on the property of one, he has the right to replevy by giving bond, although his co-defendants do not join in it. 4 Ala. Rep. 427. And it would seem inconsistent with the general [309] principles of law, that one defendant, without actual payment, could discharge a co-defendant Avithout the concurrence of the plaintiff, by giving a new security. If we hold that the lien of the judgment is lost by a levy, and the giving of a forthcoming bond, it must be on the ground alone, of the satisfaction of the judgment; and if Ave say the judgment is satisfied, by the forthcoming bond being forfeited, then a co-defendant may be discharged, after execution, by the lawful act of the sheriff and one of the defendants, without even the knowledge or consent of the plaintiff. Other apparent hardships could be suggested, that would folloAv, from holding that the levy on personal property, and the taking a bond, would discharge the lien. Suppose a levy Avas made on a ‘ slave of one defendant, and a forthcoming bond given: on the day of sale he is delivered, but from disease intervening between the levy and the sale, he brings little or nothing. The bond however is complied with, and if the bond discharges the lien, the land of the co-defendant,, aliened in the interim between the levy and sale, is discharged from the debt. And thus it may be lost, not by any laches of the plaintiff, but simply because the sheriff has done, what he is bound to do; and the defendant has exercised his legal right, given by statute.' The rule adopted by this court, holding that a levy, and the taking of a forthcoming bond, does not discharge the lien of the judgment, we think appropriate, and correct under our statutes, and the settled practice that has grown up under them. 2. The lien of the judgment is not affected, because the sheriff has failed to return the bond forfeited, and also failed to return the execution, and we are not under the evidence, authorized to presume it has been paid. By statute, the plaintiff may sue out another execution, although the first is not returned. Clay’s Dig. 201; 4 Ala. Rep. 427. And although his failure to discharge his duty, has subjected him to an action, this failure of the sheriff does not impair the rights of the plaintiff, against the defendants in the judgment. See 4 Ala. Rep. 543 ; 9 Porter, 201. The complainant, it is true, has paid a full price for the land, and purchased in good faith; but on the day of his purchase, the land was charged by law with the payment of this debt. Has the plaintiff in [310] error done any act, that will amount to a forfeiture of the lien ? The bank has remained passive merely; it does not appear it had notice of the purchase by the complainant, and probably did not know of their rights against the land. Under these circumstances, we cannot pronounce that the lien of the bank is lost, even in favor of an honest purchaser, without violating the well settled principles of law. The amount of the debt is sp small, compared to the value of the land, that we have not thought it necessary to notice the question, that might arise out of the improvements made upon it, by the complainant; but from greater caution, we will not preclude the complainant from asserting such equity as he may have, arising from the improvements put upon the land by him. We shall therefore reverse the decree of the chancellor, and will here render the decree he should have rendered, dismissing the bill of the complainant, without prejudice, however, to his equity arising from the improvements made upon the land by him. If the complainant should decline to discharge the debt, and prefer to have the land sold, he may assert this equity as he may be advised. It is further ordered that the complainant pay the costs of this court, and the costs of the court below.