Sheppard v. Rhea

B. F. SAFFOLD, J. — The only material point argued by the counsel of the parties is, whether a sale of land made by the sheriff, under execution, on the first day of the term to which the writ is returnable, is void ? We think it is. The execution is inoperative, after the time in which it should be returned. That time is certainly terminated by the commencement of the return term. It cannot include the first day of that term, because there must be a completion of the time ; and no reason can be given for its extension to the first day, which would not equally apply to the second, or any other day of the term. If there could be any doubt on this point, our construction of Rev. Code, § 2852, is, that the return day of an execution is three days before the first day of the return term. The section commands the officer to execute the writ with diligence, “ and, if practicable, perform the mandate thereof, and make return of his acts to the clerk, three days before the first day of the return term of the writ.” Section 2854 R. C. requires, if the writ be not executed, or only executed in part, the reason why it is not executed, or only executed in part, to be stated in the return. By the first section cited, the mandate of the writ must be performed, and a return to that effect made, within a specified time, if practicable. Of course, the officer is liable if he fail in this, when it is practicable. So far from affecting the return day, as fixed by the law of Clay’s Digest, this section adds stringency to the obligation of the officer to do his duty, while it declares his exoneration if he cannot perform it. Our authorities all declare the invalidity of a sale of land under an execution which is inoperative at the time. Smith v. Mundy, 18 Ala. 182; Morgan v. Ramsey, 15 Ala. 190; Barton v. Lockhart, 2 Stew. & Port. 109. The judgment is reversed, and the cause remanded.