Gamble v. Fowler

STONE, J. In Dane v. McArthur, 57 Ala. 448, we decided that judgments do not operate as liens under our statutes. It requires execution in the hands of the sheriff to create a lien, either on real or personal property. And if, after the lien is created by delivering execution to the sheriff, an entire term, from one session of the court to ■ another, is permitted to elapse, during which time no exe [578] cution is placed in the bands of the sheriff, the lien is thereby lost, and it requires a new execution in the hands of the sheriff, to create what, in such case, will be a new lien; not a revivor of the last lien. Under these well established principles, the mortgage to Gamble, executed in January, 1872, operated a paramount lien on the lands embraced in it, over the claim and lien of Corbitt, administrator; and the complainant, Gamble, wras entitled to relief, under his pleadings and proof. The eighty acres released, however, he has no claim on. The decree of the Chancellor, dismissing the original bill, is reversed, and this court, rendering the decree which that Court should have rendered, doth order and decree that said mortgage be foreclosed, and the register- is directed to take and state an account of the amount due complainant on said mortgage debt, and report the same to said Chancery Court, for its action thereon. All ■ other questions are reserved for decision in the court below. Reversed and remanded.