Sandlin v. Anderson, Green & Co.

STONE, C. J. — 1. “The sheriff is authorized to execute all mesne and final process which is required of constables,” etc. — Code of 1876, § 731. The execution in this case was not void. — 2 Brick. Dig. 480, § 71. 2. Proof of former executions issued on the same judg [333] menfimay have been unnecessary, but it could not possibly have done the claimant any harm. 3. Conant was the defendant in execution, and the appellants in this case were the claimants. Claimants were mortgagees under a mortgage dated February, 1881, and due in December, 1881. The levy .and claim were between these dates, and before the law-day of the mortgage. Conant, the mortgagor, was in possession when the levy was made, and he was allowed to retain possession of the property pending the litigation. The 'bill of exceptions contains the following- recital: “Claimants .offered evidence tending to show that, under an arrangement made with deceased (Sandlin) in his life-time, and renewed by claimants as his administrators, since his death, with said Conant, said property was left with said Conant to- hold until this litigation ended; the deceased and claimants not desiring the trouble and expense of taking care of and keeping said property while this litigation lasted.” As'W.e understand the record, this testimony was given to the jury. Interposing claim under the statute does not destroy or impair the lien created by a levy. It only suspends the right of sale pending the litigation.. If the claim is successfully maintained, the lien is destroyed. If it fails, the claimant and his sureties must restore the property to the levying officer, or pay its assessed value. Pending the claim suit, it would be very hazardous in the mortgagee or claimant to make a sale, and no-presumption can be indulged against him for not doing so. — Munter v. Leinkauff, 78 Ala. 548. We find nothing censurable, or suspicious, in the simple fact that the property levied'on was left with Conant for safe custody. Such custody, so far as plaintiff in execution is concerned, must be , treated as that of the claimant, Sandlin. Under the principle stated above, charge 3 asked by plaintiffs should not have been given.; and charge 6, although correct as a general proposition of’law, was misleading in this case. 4. While the claim suit was pending, and while the property was in the possession of Conant, one of the mules in controversy was killed by a person not a party to the record, and the value of it was paid to, and received by Conant, who gave to the offender, Yon Werdt, a receipt for the money so paid. The statement of the bill of exceptions relating to this transaction is as follows: “There was no evidence that claimants had. any knowledge of Conant getting said money from said Yon Werdt, or giving said receipt, until long afterwards, or that they .ever in any manner as334 seated thereto.” We can not perceive bow this transaction should operate against the claimants, in the inquiry of fraud vel non in the execution of Oonant’s mortgage. It could only become important in the event the property is found subject to the execution, in determining the extent of Sandlin’s liability to deliver the property. Even that would seem to be immaterial, as Conant was Sandlin’s bailee, and the latter was liable to the same extent as if he had himself made the collection from Von Werdt. Charge 8 was improperly given, because we can not perceive it was a badge of fraud. Reversed and remanded.