Hawes v. Rucker

CLOPTON, J. — Plaintiff derives title to the land sued for by purchase at a sale made by the sheriff under execution issued on a judgment rendered in his favor against George W. Hawes, in March, 1879. The execution under which the sale was made, was issued April 5, 1884, and levied on the 16th of July thereafter on the land in controversy, by Thomas Robinson, then sheriff of Jackson county. His term of office having-expired, the execution came to the hands of his successor, by whom the land was sold, and deed made to plaintiff. The only evidence of the sale consists of the recitals in the sheriff’s deed. From these recitals it appears that the land was sold under the execution November 3, 1884, at which sale plaintiff became the purchaser, to whom the sheriff executed a conveyance on the same day. The sale was made after the return day of the execution. If conceded that, when an execution is levied on real estate by a sheriff, whose term of office expires before a sale of the-property, the sale may be legally made by his successor, such sale must be made before the return day of the writ. It is-well settled in this State, that a sheriff has no power to sell land under an execution after the return day of the writ. If he makes a sale afterwards, without a revival of his authority by some new process, such sale passes no title to the purchaser. Whatever may be the rule as to the authority of the sheriff to sell personal property after the return day of the execution, which he had levied when it was in force; in respect to real estate, the rule above stated has been too firmly established to be controverted or doubted. — Morgan v. Ramsey, 15 Ala. 190; Smith v. Mundy, 18 Ala. 182. This rule has become a rule of property in this State, from which it would be unwise-to depart. Plaintiff also offered in evidence the record of an action instituted by him against George W. Hawes and others in the Circuit- Court of Jackson county, to recover the land sued for;. [169] in which action he recovered judgment against the defendants therein, and was put in possession under a writ of possession issued on the judgment. Plaintiff contends, that these proceedings and the judgment estop defendant, who is the son of George W. Hawes, from setting up tifie to the lands in suit. Neither defendant nor his grand-mother, Mary Marshall, under whom he claims to hold possession, was a party to this suit. The settled rule at common law is, that a judgment in ejectment does not confer title upon the party in whose favor it is given, and is not evidence in a subsequent action even between the same parties. — Camp v. Forest, 13 Ala. 114. Section 2714 of the Code provides: “Two judgments in favor of the defendant in an action of ejectment, or in the nature of an action of ejectment, between the same parties, in which the same title is put in issue, is a bar to any action for the recovery of the land, or any part thereof, between the same parties, or their privies, founded on the same title.” Except as ‘thus changed by statute, the common-law rule prevails. A judgment in ejectment against a tenant is not evidence against the landlord, unless he was admitted to defend, or joined with the tenant in making defense, notwithstanding he may be subject to be dispossessed by the writ of possession against the tenant, if he receives possession from the tenant pendente lite. — Smith v. Gayle, 58 Ala. 600. Neither the sale of the land under the execution and the sheriff’s deed, nor the recovery in the former action of ejectment, conferred or passed any title to plaintiff. As in ejectment, or in the corresponding statutory real action, the plaintiff must recover «upon the strength of his own title, and not upon the weakness of defendant’s, when no relation exists creating an estoppel of defendant’s denial of plaintiff’s title, the affirmative charge requested by defendant, on the undisputed evidence, should have been given. This conclusion renders unnecessary consideration of the other' questions involved. Reversed and remanded.