Weathers v. Spears

RICE, C. J. In civil cases, we are bound, under our practice, to give an opinion only as to errors which are assigned and insisted on by counsel. — Cunningham v. Carpenter, 10 Ala. 109. We shall, therefore, in this case, decline to examine any error assigned, except the single one insisted on in the argument for the appellant; which is, that Chancellor Walker erred in ordering the register to issue the writ of habere facias possessionem. When this case was here at a former term, we decided, that the judgment debtor was authorised by the statute to redeem only “the interest that may have been sold” at the execution sale; and that, under his bill to redeem, the chancery court ought not to go beyond the statute. Under such a bill, that court is not authorized to determine conflicting titles, and to put the judgment debtor in a better condition than he occupied when his land was sold under execution. It may be, that the chancellor can restore him to the condition he occupied at the sale. But, if, as in this case, it appears that the possession of the land at the time of the sale was not with the debtor, but with the purchaser, and that the purchaser was then claiming it under a title other than that of the debtor; then, although the court may decree a redemption, yet it ought not to award a writ of habere facias possessionem. Weather’s v. Spears, 27 Ala. 455. So much of the decree of the chancellor (Walker) as orders the register to issue the writ of habere facias pos-sessionem, is erroneous, and is reversed and annulled. In all other respects, the decree of Chancellor Walker is affirmed; and the decree of Chancellor Foster must, in all respects, be affirmed. The appellee must pay the costs of the appeal.