Branch Bank at Mobile v. Ford

DARGAN, J. The rule is so well established, that a claimant of property cannot be permitted to question the propriety of the judgment, or the regularity of the execution, that it is unnecessary to refer to the numerous decisions in support of it. A claimant shall not be permitted even to show the satisfaction of the judgment. But I understand this rule to be limited to this extent, that the claimant shall not sustain his claim by showing such defects or irregularities. In the case at bar, the title of the claimant is older than the lien of the plaintiff, unless the plaintiff can show, that his lien is older than the date of his execution, or the time when it came to the hands of the sheriff. If we look, therefore, to the date of claimant’s purchase, and to the execution only, the property is not liable to the execution; the sale is admitted to be bona fide. The plaintiff, then, must show that his lien he is seeking to enforce, has an older origin than the claimant’s purchase : he must show a valid subsisting lien against the slave, at the time of the sale from the defendant in execution, to the claimant. , The claimant has the right to controvert the existence of this lien, or to show that it has been lost. If this is not the law, then the trial of the right of property can never protect a purchaser from the defendant in execution, although the judgment may be ten years old, or the lien expressly abandoned. But all will admit, that if the title of the purchaser is older than the execution levied on the property, it is necessary that the plaintiff should go back, and show that he is prosecuting a lien, older than the claimant’s title ; and if his proof should not show a valid lien, older than his title, he must fail. So, if his proof shows that his lien is lost. The return made by the sheriff, on the execution delivered to him on the third of October, 1846, under the, directions' of the bank attorney, is this: “ The sheriff will return this execution, as the judgment is satisfied on which it issued, as per D. Chandler’s receipt lodged with me, dated first April, 1841. The branch bank will rule the sheriff.” This return was made on the fourth November, 1846. The title of the claimant bears date 28th October, 1846. What is the effect of this return ? In the case of Haden v. Walker, 5 Ala. Rep. 434 89, the return was, “ the defendant in this case has settled with the plaintiff’s attorney, as per his receiptand this court held this to be a return of satisfaction. The return in the case now before the court, must also be considered as a return of satisfaction. The execution, then, returned the fourth of November, 1846, is satisfied. Although this return was made under a mistake, yet it is well settled, that after it is made, an alias execution cannot be legally issued, without some action of the court amending the return, or setting it aside. See 1 Porter’s Rep. 30; 6 Ala. Rep. 89. No action of the court has ever been had, to correct this return, and so far as the facts agreed show, it is still standing as the return. Can the lien of the execution continue, after the right to issue an execution is gone ? That is, can it continue, so as to defeat á bona fide purchaser? An injunction bond discharges the lien; so does a writ of error bond ; or if the plaintiff enter into a contract with the defendant, by which the right to issue execution is lost, the lien is lost with it. A lien is said not to be a title in, or to the thing, bound by it; but a mere right to subject the goods to the payment of the debt. From its very nature, when the right to subject the thing to the payment of the debt is gone, and the lien is this mere right, of course the lien is gone. We therefore come to the conclusion, that the plaintiff has failed to show an older lien than the title of the claimant, and consequently, the property is not subject to the execution, for it can only be subject to the execution, by showing, that the plaintiff was seeking by his execution, to enforce a lien older than the plaintiff’s title. The judgment of the circuit court is therefore affirmed.