Draper, Matthis & Co. v. Nixon

COLEMAN, J. — The suit was in detinue by appellants, and •on the trial the court gave a general charge to the jury in favor of the defendants. The property sued for was sold by a constable on the 3d of March, 1888, under execution in favor of W. L. Windham against A. J. Ingram, issued on a judgment regularly recovered in the justice’s court. The execution stated that the judgment was obtained October 7th, 1882, and it has, among others, the following indorsements: February 7,1883, fi. fa. No. 1; October 12, 1883, fi. fa. No. 2; “Issued January 28th, 1888.” The executioii was received February 7th, 1888, and the levjr made February 19th, 1888, and indorsed, “subject to oldest mortgage.” Stephens & Son had a mortgage on the same property, dated March 20th, 1885. At the time of the levy, a balance was. due and unpaid on this mortgage. Its priority as a valid lien is not controverted. Appellants claim under two subsequent mortgages upon the same property, both executed in the year 1887. On the day, and at the time and place of sale, the constable stated that he was selling to pay the execution and satisfy the bal•ance on the Stephens mortgage. The property was sold by the constable, and bought by the appellee, who, after the sale, |>aid to Stephens the balance due on his mortgage. Stephens was present at the sale, and turned over his note and mortgage to Shackelford, the attorney of Windham, plaintiff in execution, he agreeing to'pay to Stephens the balance due on the mortgage. Section 3017 of Code of 1886 provides, that when persohal property, is sold under execution, the plaintiff in the process may pay the mortgagee, or his assignee, the amount owing on the debt secured by the mortgage; and in such case, the property shall be sold as well for the payment of the mortgage debt as for the satisfaction of the process, the proceeds •of sale to be first applied, after payment of costs, to reimburse the plaintiffs for the amount so paid by him, or his assignee. The officer selling property by execution under this section (3017) is not required to give the notice which may be stipulated in the mortgage, before he can proceed with the sale. On the trial, the plaintiffs objected to the introduction of the execution as evidence, on tíre ground that the ufi.fa. was void and illegal on its face.” The objection wras overruled by the court, and duly excepted to. It is not shown by whom, or what authority, the indorsements on the writ of execution were made, or what connection they have with the judgment. The judgment was rendered March 7th, 1882, and the execution issued in January, 1888, and was levied in February, [439] 1888 — more than five years from the date of its rendition, but less than six years — Code of 1886, §§ 3364, and 2615, sub-div. 9. A judgment not satisfied, nor barred by lapse of time, but temporarily inoperative, so far as the right to issue execution is concerned, is usually called a dormant judgment. — 1 Freeman on Execution, § 81. An execution issued on such a judgment is not void, but irregular and voidable, and it can not be successfully attacked collaterally. — Steele v. Tutwiler, 68 Ala. 110; Sandlin v. Anderson, 76 Ala. 405; 1 Freeman on Ex., §§ 25, 29, 30 and notes ; 22 Amer. Rep. 157; Boren v. McGehee, 6 Port. 432; 4 S. & P. 237. The fact that it can not be revived by scire facias, which is strictly a statutory proceeding, after five years, does not destroy its character and force as a dormant judgment, upon which execution might have been issued at common law, unless the full period had expired, between the date of rendition and the issue of execution, necessary to complete a bar by the statute of limitations, which in this case would be six years. This is the law as declared in the above authorities, and further sustained in Brown v. Higginbottom, 19 Ala. 208, and Vancleave v. Haworth, 5 Ala. 180. The defendant in execution can take advantage of. such irregularities, but, if he makes no objection to the irregularities of the process until his property is sold, and passes into the hands of purchasers who are strangers to the suit, he can not afterwards complain. Such a purchaser would acquire a good title. Conceding- all adverse inferences which could be drawn from the evidence on the undisputed facts, the court did not err in giving the general charge in favor of the defendant. It is, therefore, unnecessary to inquire further into the ruling of the court on the admission of the evidence. — Ga. Pac. Railway Co. v. Blanton, 84 Ala. 158. We do not wish to be understood as holding that the proceeds of the sale, in excess of what was due on the prior mortgage of Stephens & Son, were properly applied to the judgment of Windham, or the execution, instead of to appellants’ mortgage. This question is not raised by the pleadings, and is not decided. The judgment is affirmed.