Thomas v. Glazener

CLOPTON, J. -This proceeding is a motion made by appellants to enter satisfaction of a judgment, obtained by appellee against them, in the Circuit Court of Talladega county. ■ The motion is based on the following admitted facts: An execution issued on the judgment, March 13, 1889, was levied bjr the sheriff on certain land, as the property of E. B. Riser, one of the defendants in execution. The land was sold under the execution, on the first Monday of July, 1889, and purchased by appellant, at a price sufficient .to pay the entire judgment, principal,“interest, and cost. At the sale notice was given that the land did not belong to Riser. Appellee having ascertained, after the sale, that he had no title to the land, nor interest therein, refused to pay the amount of the costs, and to credit the judgment with the amount of his bid in excess of the costs, and accept a deed from the sheriff. The validity of the judgment, and the regularity of the execution and sale, are not controverted; neither is there any pretense of fraud, imposition, or surprise. The land was levied upon and sold at the instance of the appellee, who purchased with notice of the defect of title. However irreconcilable may be the, judicial decisions, as to whether a purchaser at a sheriff’s sale under execution, where there is neither fraud, imposition or surprise, will be relieved from the effect of his bid, on the mere ground that the defendant in executon had no .title or interest whatever in the property, this is not an open question in this State. By our decisions, the doctrine of oaveat emptor has been uniformly applied to sales made by the sheriff under execution ; the purchaser buys at his own risk, and renders himself liable for the amount of his bid, notwithstanding the defendant in execution has no title to the property. If the plaintiff in execution purchases, his purchase operates an irrevocable satisfaction of the judgment, from which a court of equity will not relieve him, especially when he buys with notice of the defect of title. McCartney v. King, 25 Ala. 681; Goodbar v. Daniel, 88 Ala. 583. Had a stranger purchased, and the sheriff received the money, the result would have been satisfaction of the execution pro tanto ; and when property is levied on and sold by direction of the plaintiff in execution, and he bids it off, at a price sufficient to pay the entire judgment, the law appropri [539] ates the bid to the discharge of the execution- and satisfaction of the judgment, notwithstanding he may refuse to accept the property.—Halcomb v. Loudemilk.—3 Jones Law, 491. We decide nothing as to effect of the statute of frauds; this question was not raised in the Circuit Court, and can not be raised the first time in this court. All we decide is, that on the agreed state of facts, if there be nothing else, the motion to enter satisfaction should have been granted. Reversed and remanded.