Herzberg Bros. v. Hollis

COLEMAN, J. The appeal is prosecuted from an order of the circuit court, quashing an execution and setting aside a sale of land made by virtue thereof, issued from the circuit court of Etowah county against the appellee, Joseph P. Hollis. The motion and evidence introduced on the trial show, that the judgment was recovered on the 24th day of July, 1886, and execution issued on the 2d day of September, 1886; that no other execution issued thereon until the 24th day of [497] May, 1897, more Ilian ten years after the first execution had become functus; and that the judgment has not been paid. The judgment was recorded in the record book of liens and judgments in the probate office, on the lltli of August, 1887, more than twelve months after the rendition of the judgment. — Sections of the Code of 1896, 1922, 1924, 1925; Ensler v. Wheeler, 98 Ala. 200. The defendant in execution moved the court to quash the execution and vacate the sale at the first term of the court thereafter and within less than two months after the sale. Though a sale by virtue of an execution issued on a dormant judgment is not void, it is voidable at the election of the defendant in execution, seasonably expressed, unless by some act he is estopped from asserting the right. — Gardner v. Railroad Co. 102 Ala. 635; McCall v. Rickarby, 85 Ala. 152; Cowan v. Sapp, 74 Ala. 44; Ponder v. Cheeves, 90 Ala. 117; Slater v. Alston, 103 Ala. 605. It seems that the purchaser at the sale was interested as plaintiff in execution. The only fact brought forAvard as evidence of an estoppel or Avaiver is, that plaintiff Avas present at the sale and interposed no objection. He testifies that he had no knoAAdedge at the time that the execution Avas issued on a dormant judgment. Certainly the plaintiff and purchaser was chargeable Avith this information. There is no error in the record. Affirmed.