Street v. McClerkin

STONE, C. J.' We are asked to affirm the judgment in this case, without any reference to the rulings of the court, on the following principle : The bill of exceptions states it contains all the evidence, and it is contended there is no proof that the horse sued for was in McClerkin’s possession when the suit was brought. That being a necessary condition to plaintiff’s right to recover, the contention is that he fails to show any right of recovery, and it is immaterial what errors of ruling the court may have fallen into ; they would, at most, be errors without injury, which are not grounds of reversal. — Alexander v. Caldwell, 61 Ala. 543. We do not think the principle applicable to this case, for the following, among other reasons: It was shown that when the horse was sold, at constable’s sale, J. M. Stewart & Co. purchased, and soon afterwards sold said horse to McClerkin ; and there is no proof that the latter had parted with the possession, when the sheriff took possession under the writ in this case. In the absence of all proof to the contrary, we can not affirm the jury were without warrant for finding the horse continued in the same custody he was last shown to have been in. Street, the plaintiff, relied on a mortgage executed by Mur [583] phy to him, bearing date December 26, 1881. He offered no proof of any consideration, or debt, to uphold said mortgage. This was Street’s only evidence of title. In November, 1881, J. Draper & Co. recovered a judgment against Murphy for eighty dollars^ before a justice of the peace in Calhoun county, where Murphy then resided. This judgment was evidence of indebtedness from Murphy to J. Draper & Co., from the time of its rendition, and, as against them, cast on any one claiming an after-acquired interest in Murphy’s property, the duty of proving a consideration therefor. In the absence of such proof, Street’s mortgage must be adjudged voluntary, and constructively fraudulent against Murphy’s existing creditors. — Zelnicher v. Brigham, 74 Ala. 598. The conveyance is good, however, between Murphy and Street, and vests in the latter a title which would maintain an action against Murphy, and against any one else who does not connect himself with a better right. Draper & Co.’s right to assail the mortgage, for want of proven consideration, can not avail MeClerldn, unless he connects himself with their right. After the recovery of the judgment in Calhoun county by J. Draper & Co. v. Murphy, the latter removed to Talladega county, and resided there when he made the mortgage to Street, December 26, 1881. An execution was issued on said judgment, and placed in the hands of Kingston, the constable of the precinct in which the judgment was rendered. Kingston carried the execution to Talladega county, and, going to fhe precinct in which Murphy resided, found the regular, bonded constable of the beat to be Murphy’s brother-in-law, who, on that account, did not desire to execute the writ. A justice of that precinct, Hendricks, then appointed Kingston special constable, who on the 28th of December levied the execution on the horse sued for. This was two days after the mortgage from Murphy to Street was executed, but before it was put on record. Kingston then carried the horse to Calhoun county, and, after giving notice, sold him in that county, as constable, under said execution, and J. M. Stewart & Co. became the purchasers, as stated above. It is contended for appellant, that the appointment of the special constable was void, the levy void, and that the sale was void for two reasons: first, because there was no valid levy ; and second, because the sale was not made in the county and precinct in which the defendant resided. These were irregularities, but we do not think they rendered the proceeding void. — Code of 1876, § 3637; Freem. on Ex. §§ 289, 290. There was uncertainty and conflict in the testimony on another point. It is contended for appellant, that the execution issued by the justice in Calhoun county was sent to Talla [584] dega county, and there levied, without the certificate of the judge of probate of Calhoun county, and without the certificate of a justice of Talladega county, who had knowledge of the Calhoun justice’s hand-writing; in other words, without any authentication of the execution. — Code of 1876, § 3647. The testimony for appellee tended to show the execution was certified by Justice Hendricks, thus supplying this statutox*y requix’ement; and that for appellant, that Hendricks simply appointed Hingston special constable to execxite the writ. If appellant’s version of tire facts be the true one — that is, if Hendricks did not certify, in-substance, that he knew the hand-writing of the Calhoun justice who issued the execution, and that the signature to the execution was in his proper hand-wilting — then the levy in Talladega county was without authority — was void — and the sale conveyed no title. A justice’s execution can confer no authority beyond the boundaries of his county, unless it is certified as the said section of the Code requires. — Herman on Executions, § 168; Fi’eem. on Ex. § 104 ; Kinter v. Jenks, 43 Penn. St. 445 ; Dinkgrave v. Sloan, 13 La. Ann. 393 ; Bank v. St. John, 29 Barb. 585. The fifth chai’ge asked by the plaintiff ought to have been given. Some testimony was given bearing on the question of notice. It will not probably be the same on another trial. Reversed and remanded.