Mickle v. Montgomery

BRICKELL, C. J. Originally, all civil process issued by a justice of the peace, except in proceedings for the forcible entry and detainer, or the unlawful detainer of lands, could’ be served or executed only by a constable ; the service or execution of such process, was not within the authority and duty of the sheriff. By an act approved February 26, 1875, which formed section 731 of the Code of 1876, and now forms section 811 of the present-Code, it is declared: “The sheriff is authorized to execute all mesne and final process which is required of constables, and shall receive the same fees and compensation therefor, and he and the sureties on his official bond shall be liable for any abuse of process that he may execute under this section.” The operation and effect of the statute is, that in the execution of all mesne and final process which constables had been required and authorized to execute, the duty and authority of the sheriff is co-extensive with that of the constable. Statutes authorizing the .execution of such process may have nominated a constable only as' chargi d with the duty. Such statutes are in pari materia with the succeeding statute conferring on the sheriff the duty and authority co-extensive with that which they conferred on a constable, and must be read and construed in connection. The statute authorizing the levy on lands of an execution issued by a justice of the peace, was in existence long prior to the statute authorizing the sheriff to execute mesne or final process issued by a justice. Naturally, as a constable only then had authority to levy executions issued by a justice, it designated the constable as the [421] officer to make the levy. But the subsequent statute intervened, and when the two are lead in connection, it is obvious that while the duty and authority of the constable is'not taken away, the duty and authority of tne sheriff is concurrent and co-extensive. The levy and return by the sheriff of the execution was in proper form, and a legal basis for the orders of sale rendered by the circuit court. ' There was no error in the exclusion of the instrument in writing, purporting to be a conveyance of the premises in controversy by the defendant in execution, the Randolph and Chambers Co-operative Mercantile Association . It was without the essentials of a conveyance to pass a legal interest in the premises. — Taylor v. A & M. Asso., 68 Ala. 229; Standifer v. Swann, 78 Ala. 88; Swann v. Gaston, 87 Ala. 569. A plaintiff in ejectment,'or in the corresponding statutory real action, must recover on the strength of his own title. When he deduces title under a .purchase at a sale made bya’sheriff under execution, he must show that the defendant in the judgment, to whose title he succeeds, has an estate or interest in the lands which was subject to levy and sale. As he is not presumed to have access to the title papers of the defendant, there is no requirement that he should show written evidence of the title. He may recover, in the absence of evidence of an outstanding legal title, upon the same evidence, which would authorize the defendant to recover if he were suing a trespasser, or one entering under him who refused to surrender the possession. — Badger v. Lyon, 7 Ala. 564; McCall v. Pryor, 17 Ala. 533; Hendon v. White, 52 Ala. 597 ; Pollard v. Coche, 19 Ala. 188. The possession of lands is prima facie evidence of title, and is sufficient evidence against all who do not show a prior possession or a better title. — McCall v. Pryor, supra; Smith v. Lorillard, 10 Johns. 347; Tyler on Ejectment, 72-73, Newall on Ejectment, 433. The occupancy of the premises by parties under the defendant in execution, as evidence of title, was the possession of the defendant. If they had refused to surrender the possession, the defendant could have recovered it from them. Entering under the defendant was a recognition of the title, and a subordination of the occupancy to it.. The letting of them into [422] occupancy, was the exercise of ownership, indicating that the defendant had the animus dominendi. There can be no doubt of the right of the defendant to have recovered possession from them ; nor of the right to have recovered from a mere trespasser entering or intruding upon the occupancy. This being true, in the absence of all other evidence of title, it is sufficient as evidence that the defendant had an estate or interest in the premises,the subject of levy and salé under the execution. That the names of the occupants, or the terms of the contract or agreement under which they occupied, were not shown, does not detract from the force of the fact tjiat they entered and occupied under the defendant. If it had been supposed that a disclosure of their names and. of the terms of the contract or agreement, would have impaired the force of the occupancy, or negatived the presumption arising from it, the defendant had the opportunity by cross examination to have elicited all the facts. The difficulty in the present case is, that the evidence does not show that the entry under the defendant in execution was prior to the levy under the execution, or prior to the sale. For aught that now appears, the entry was subsequent to the levy or sale. There was of consequence error in the giving of the general affirmar tive charge to find a verdict for the plaintiff. Reversed and remanded.