In Alabama, a judgment in itself imposes no lien upon the
property of the judgment debtor, but the issue of an execution and
its delivery to the officer are necessary to create a lien.
According to the settled rule in Alabama, when an execution
comes to the hands of the sheriff, the lien attaches and continues
from term to term, provided alias and pluries writs are duly issued
and delivered, and while it is so kept alive, the lien is, upon
levy and sale, paramount to any intermediate conveyance by the
debtor, and as in this case the facts show that valid executions
were issued and delivered to the marshal as early as January 23,
1877, and on return alias executions were duly issued and duly
levied, the subsequent sale related back to the original issue, and
took the legal title out of the plaintiff in error prior to his
deed of March 22, 1877.
When it appears by a memorandum on judgment records that "by
consent, execution is stayed until" a date named, and execution
issues before that date, it will be presumed, nothing appearing to
the contrary, that it was rightly issued, and that either the
agreement lacked consideration, or was not authorized, or had been
by mutual assent annulled, or that the terms of the agreement had
not been complied with by defendant.
This was an action "in the nature of ejectment," as so
denominated in the Alabama Code, brought by the United States
against Eugene Beebe, Sims Phillips, and Adeline Thomas, for the
recovery of an undivided one-fourth interest in a tract of land
known as the "Montgomery Race Track," containing eighty acres, in
the Circuit Court of the United States for the Middle District of
Alabama. Beebe defended as landlord, and Phillips and Thomas were
his tenants. Trial was had, a verdict rendered for plaintiffs, and
judgment entered thereon accordingly. On the trial, plaintiffs put
in evidence a deed executed by Josiah Morris and wife, June 14,
1873, to Eugene Beebe and Ferrie Henshaw, of an undivided one-half
of the eighty acres in question, of which, it was admitted, Morris
was seised and possessed at that date. The records
Page 161 U. S. 105
of two separate judgments recovered in favor of the United
States against Beebe and others, December 19, 1876 at the regular
November term, 1876, of the Circuit Court of the United States for
the Middle district of Alabama, for the sums, respectively, of $991
and $1,638.68, were put in evidence. The
consideratum
clause in each instance concluded, "for which let execution issue."
Above the record of each judgment appeared the amount thereof in
figures, followed by the words: "Stay of ex. till 25th March, 1877.
R." And at the foot of each judgment were these words: "And, by
consent, execution is stayed until the 25th day of March, A.D.
1877."
Two alias executions issued on said judgments May 10, 1877,
"with the endorsements thereon," were put in evidence. They ran in
one of the forms of an alias writ, "Again you are hereby
commanded," and were entitled on the back, "Alias Fi. Fa." Each had
endorsed upon it (in almost verbally identical words) the
following:
"Received in office January 23d 1877"
"Geo. Turner,
U.S. Marshal"
"To satisfy the within execution, I have levied, this 5th day of
April, 1877, on an undivided half interest in the following
described property, to-wit:"
"
* * * *"
"2d. The tract of land known as 'Montgomery Race Track,' near
Montgomery, containing eighty acres, more or less."
"
* * * *"
"Notice in writing given the defendant."
"Geo. Turner,
U.S. Marshal"
"Returned for alias; not advertised and sold, for want of time.
April 6th, 1877."
"Geo. Turner,
U.S. Marshal"
"P'r F. Jost,
Dep."
Below these endorsements, on each writ, the clerk of the court
certified, under his hand and seal, May 10, A.D. 1877,
Page 161 U. S. 106
"The foregoing page to contain a true copy of the return of the
marshal on the execution issued next last preceding this in the
aforesaid cause, as the same appears of record and on file in my
office as clerk of said court.\"
There was also endorsed on each writ, "Received in office May
10th, 1877," and a levy, May 10, 1877, which included said tract of
land.
On the execution for $1,638.68 appeared this return:
"The property of the defendant Beebe, herein described [certain
property being named as excepted], was on the second day of July,
1877, sold to the United States for one thousand dollars, and deed
made to the United States for the same. George Turner, U.S.
Marshal."
Plaintiffs then introduced in evidence a deed of the United
States marshal to the United States, dated July 2, 1877, and duly
acknowledged and recorded, reciting the levy of execution on the
property, and the sale thereof on that date, after due
advertisement, to the United States, as the highest and best
bidder, and conveying all Beebe's interest in the tract.
Defendants offered in evidence a deed from Beebe to Henshaw,
dated March 22 and acknowledged and recorded March 23, 1877. This
instrument recited that a copartnership had existed between Beebe
and Henshaw under the name of E. Beebe & Co.; that Beebe would
be found, on a settlement of the affairs of the firm, to be
indebted to it and also to Henshaw for moneys advanced and paid out
by him in excess of his proportion as partner, the precise amount
of which could not be ascertained until the debts of the firm were
paid and a settlement had between Beebe and Henshaw; that Beebe and
Henshaw were owners, as partners, of real and personal property,
which was enumerated, and included an undivided half interest in a
tract of land called the "Old Montgomery Race Track," and
therefore, "to protect and secure" the creditors of the firm, and
to enable Henshaw "the more easily and readily" to settle and pay
its debts, and "to protect and secure" Henshaw for moneys paid out
and advanced for the firm in excess of his proportion, and "to
protect and secure him" for all moneys that Beebe might owe the
firm or Henshaw
Page 161 U. S. 107
on a settlement between them of the firm's affairs, Beebe
conveyed all his interest in the property described, as partner or
otherwise, to Henshaw
"in trust, to sell the same at such times and places, and on
such terms, for credit or for cash, or for part cash and part
credit, and at private or public sale, as the best interests of the
said creditors of said firm, and of him and myself, as he may
determine, and to apply the proceeds thereof to the payment of the
debts of the said firm, and to the payment of what I may be found
indebted to said firm, or to said Ferrie Henshaw, on the settlement
between us of the affairs and business of said firm, and if any
excess should remain in his hands from the sale of said property,
after the payment of said debts of said firm, and of what I may owe
the said firm, or owe him, on the said settlement of the business
and affairs of said firm, then he shall pay back to me such excess;
and, if there should remain in his hands any of said property not
required to be sold for the purposes aforesaid, then, on such final
settlement between us, he shall reconvey the same to me, my heirs
or assigns."
Plaintiffs objected to the introduction of this deed in evidence
on the grounds, among others, that it "is void upon its face" and
that it "sets up no claim superior to the title of the United
States acquired at the execution sale." Beebe was then sworn as a
witness, and defendants proposed to prove by him that, at the time
of the execution of the deed offered in evidence, Beebe and Henshaw
were in copartnership; that at that date, the partnership was
indebted to various persons in amounts aggregating $40,000, and
Beebe was indebted to Henshaw about $2,000 individually, and also
about the same sum on account of partnership matters; that the
property was purchased while Beebe and Henshaw were partners, and
was purchased with partnership assets; that the deed had been
delivered to and accepted by Henshaw. But defendants admitted that
Henshaw had never sold any of the property conveyed by the deed,
and that nothing had been done thereunder. The court sustained
plaintiffs' objection to the introduction of the deed and refused
to allow the same to be read in evidence, and defendants
excepted.
Page 161 U. S. 108
Thereupon plaintiffs offered in evidence a deed by Henshaw to
Beebe, dated February 23, 1878, which recited that the debts and
business affairs of the partnership had been fully settled, without
the necessity of having to sell any of the property for that
purpose, and therefore Henshaw reconveyed to Beebe an undivided
one-half interest in and to the property. In that connection
defendants "proved" (offered to prove) that after March 22, 1877,
Henshaw became incapable of attending to business, and that
thereupon Beebe procured Henshaw to execute the deed of February
23, 1878, at which time the debts and business affairs of the
partnership had not in fact been settled and paid.
The court instructed the jury that "if they believed the
evidence, the plaintiff was entitled to recover the land sued for
in the complaint filed in this cause."
The following errors were assigned:
"(1) The rejection of the deed executed by the plaintiff in
error Eugene Beebe to Ferrie Henshaw on the 22d day of March, 1877,
offered in evidence by the plaintiffs in error, conveying to said
Henshaw the property involved in this cause."
"(2) The rejection of said deed offered in evidence by the
plaintiffs in error, in connection with the facts the plaintiffs in
error proposed to prove by the testimony of the said Eugene
Beebe."
"(3) The rejection of the testimony of said Eugene Beebe,
offered by the plaintiffs in error in connection with said deed,
and to support the same."
"(4) The charge of the court to the jury 'that if they believed
the evidence, the plaintiff was entitled to recover the land sued
for in this cause.'"
MR. CHIEF JUSTICE FULLER, after stating the facts as above,
delivered the opinion of the Court.
Page 161 U. S. 109
The exception saved by defendants was to the refusal of the
court to admit the deed of March 22, 1877, in evidence, and the
first three errors assigned may be considered together.
It is the settled law of Alabama that a judgment, in itself,
imposes no lien upon the property of the judgment debtor, real or
personal, but that the issue of an execution, and its delivery to
the officer, are necessary to create a lien.
Dane v.
McArthur, 57 Ala. 448;
Carlisle v. Godwin, 68 Ala.
137;
Perkins v. Brierfield Iron & Coal Co., 77 Ala.
409.
Under section 2871 of the Code of Alabama of 1867, applicable
here, executions could be levied on real property to which the
defendant had a legal right or a perfect equity, having paid the
purchase money, or in which he had a vested legal interest, in
possession, reversion, or remainder, whether he had the entire
estate, or was entitled to it in common with others; on personal
property of the defendant; on an equity of redemption in land or
personal property.
The deed of Morris, of June 14, 1873, to Beebe and Henshaw,
"their heirs and assigns," conveyed an undivided one-half interest
in the lands to the grantees, and vested in each of them an
undivided one-fourth interest, as tenants in common. This was so
held in
Southern Cotton Oil Co. v. Henshaw, 89 Ala. 448,
451, and that,
"this being the case, although a partnership existed between
Beebe and Henshaw, upon the death of the latter, the legal title of
his undivided one-fourth interest descended to and vested in his
heirs, also as tenants in common with each other and with
Beebe."
Defendants conceded legal title in Beebe, but by way of
answering the objection to the instrument of March 22, 1877, as on
its face lacking in good faith, evidence was tendered to show that
the real estate was purchased with partnership funds, though not
for partnership purposes.
Hatchett v. Blanton, 72 Ala.
423, 435; Pars. Partn. *365.
The evidence in this regard, such as it was, was offered in
connection with the question of the admissibility of the deed of
March 22, 1877, and the action of the court to which an exception
was saved was solely to the refusal to permit that deed to be
introduced.
Page 161 U. S. 110
If valid executions were issued and delivered to the marshal as
early as January 23, 1877, and, on return, alias executions were
issued and duly levied, then the subsequent sale related back and
took the legal title out of Beebe, prior to March 22, 1877, so that
the deed of the latter date was immaterial, and there was no error
in refusing to admit it.
It is argued that the only executions shown by the record to
have been issued on the judgments were those of May 10, 1877, but
we do not think so. The executions of that date were alias writs,
and the presumption is that they were preceded by others regularly
issued.
Sellers v. Hayes, 17 Ala. 749;
Pollard v.
Cocke, 19 Ala. 188. But the fact did not rest upon
presumption, for these writs bore the endorsement of the receipt by
the marshal, January 23, 1877, of the previous writs; their levy on
the property in question, April 5, 1877, and their return, April 6,
1877, for want of time to advertise the sale. And the return of the
marshal, covering the date of the receipt and the levy of the prior
writs, was duly endorsed upon the alias writs, and certified to by
the clerk of the court under his hand and seal. All this was
admitted in evidence without objection, and if defendants desired
to raise the objection that the original executions ought to be
produced, they should have done so then, when, if well founded, the
objection could have been removed.
The Code of 1867 provided that the clerk should issue executions
as soon after the adjournment of the court as practicable, within
the time prescribed, namely, if the session was one week, within
ten days; if two weeks, within fifteen days; if three or more
weeks, within twenty days. The day, month, and year of its receipt
was required to be endorsed thereon; return to be made three days
before the first day of the return term, which was the next term
after its date, unless issued less than fifteen days before court,
and then the term next thereafter, and the reason for its
nonexecution in whole or in part was required to be stated in the
return. Sections 2838, 2839, 2851-2854.
Sections 2872 and 2873 were as follows:
"§ 2872. A writ of
fieri facias is a lien, only
within the
Page 161 U. S. 111
county in which it is received by the officer, on the land and
personal property of the defendant, subject to levy and sale from
the time only that the writ is received by the sheriff, which lien
continues as long as the writ is regularly issued and delivered to
the sheriff without the lapse of an entire term."
"§ 2873. The liens of executions as between different
judgment creditors and between judgment creditors and purchasers
from the defendant for valuable consideration are hereby declared
to be that if an entire term elapse between the return of an
execution and the suing out of an alias, the lien created by the
delivery of the first execution to the sheriff is lost; but if an
alias be sued out before the lapse of an entire term, and delivered
to the sheriff before the sale of property under a junior
execution, the lien created by the delivery of the first execution
must be preferred."
The regular terms of the Circuit Court of the United States for
the Middle district of Alabama began on the first Monday of
November, 1876, and the first Monday of May, 1877, and these writs
were issued, delivered, and levied without the lapse of an entire
term, as specified in the statute. Carlisle v. May, 75 Ala. 502.
According to the settled rule in Alabama, where an execution comes
to the hands of the sheriff, the lien attaches, and continues from
term to term, provided alias and pluries writs are duly issued and
delivered, and while it is so kept alive the lien is, upon levy and
sale, paramount to any intermediate conveyance of the debtor.
Parks v. Coffee, 52 Ala. 32;
Hendon v. White, 52
Ala. 597;
Childs v. Jones, 60 Ala. 352;
Perkins v.
Brierfield Co., 77 Ala. 403, 410;
Massingill
v. Downs, 7 How. 760,
48 U. S.
767.
The original executions here had been duly issued and levied,
but returned for want of time to advertise and sell. The alias
writs were then taken out, and apparently a new levy and sale made
thereunder. In some jurisdictions, a formal
venditioni
exponas might have been issued, but these alias writs, with
their endorsements thereon of the prior levy, were quite as
efficacious, and the sale could be sustained as made under the
original or new levy.
Page 161 U. S. 112
In
Dryer v. Graham, 58 Ala. 623, 626, the Supreme Court
of Alabama said:
"It rests in the election of the plaintiff in execution to take
out an alias execution, or a writ of venditioni exponas. If he
desires merely a sale of the property on which a levy has been
made, and not of other property, or the acquisition of a lien on
other property, a
venditioni exponas is the proper writ.
The
venditioni exponas continues the lien of the execution
which has been levied as to the property on which the levy was
made, whether the property be real or personal. The writ is,
indeed, merely for the continuation and completion of the original
execution. And if its mandate is for the sale of land on which
there had been a previous levy, it not only compels a sale, but
confers the authority to sell, and the title of the purchaser has
relation to the date of the lien of the execution. . . . A
venditioni exponas is in its nature and operation as to
the property on which the levy may have been made, an alias
execution. It merely commands and authorizes, as to real estate,
the completion of the execution already begun."
Certainly, this sale was nonetheless valid because there had
been a levy of the original writs, and alias executions were issued
and levied on the same property.
But it is contended on behalf of plaintiffs in error that no
executions could have issued until March 25, 1877, by reason of the
memoranda on the judgment records that, "by consent, execution is
stayed until the 25th day of March, A.D. 1877."
Assuming that the consent for a stay was given by someone acting
for the government, although that does not appear, yet from the
fact that executions were issued before the expiration of the time,
the presumption would be reasonable -- nothing appearing to the
contrary -- that they were rightly issued, and that either the
agreement lacked consideration, or was not authorized, or had been
by mutual assent annulled, or that the terms of the agreement had
not been complied with by defendants.
The Supreme Court of Mississippi held, in
Jones v.
Bailey, 5 How. (Miss.) 564, where plaintiffs agreed to stay of
execution for a certain time, "unless defendants consent for
its
Page 161 U. S. 113
issuance sooner," and execution was issued without regard to the
agreement and property sold, that the presumption was that it
issued with the consent of defendants.
The marshal's return on the original writs showed that notice of
the levy thereof was given Beebe in writing as required by statute
(§ 2857), and the fact that he did not complain that the
executions had been issued contrary to agreement renders the
presumption that they were not obnoxious to that objection well
nigh, if not altogether, unanswerable.
Aside from this, as the executions were in fact issued and
received by the marshal January 23, 1877, the question thus
suggested would be whether the executions were voidable, or
absolutely void, if the consent for a stay was lawful and the
executions were taken out in violation thereof.
In Freeman on Executions (2d ed.), §§ 25, 26,
et
seq., a textbook cited and relied on in numerous decisions of
the Supreme Court of Alabama, it is said that the decided
preponderance of authority is in favor of the proposition that the
premature issue of an execution is an irregularity merely; that the
execution is erroneous, but must be respected, and may be enforced
until it is vacated in some manner prescribed by law; that no one
but the defendant can complain of it, and even he cannot do so in
any collateral proceeding. And, among other cases,
Blaine v.
The Ship Charles Carter, 4 Cranch 433, is cited,
which was decided by Chief Justice Marshall on circuit, and his
decree affirmed by this Court, Mr. Justice Chase delivering the
opinion. In that case, under an act of Congress providing that,
"until the expiration of ten days, execution shall not issue,"
certain executions were collaterally objected to on the ground that
they were issued within ten days, and the Court said:
"If irregular, the court from which they issued ought to have
been moved to set them aside. They were not void, because the
marshal could have justified under them, and if voidable, the
proper means of destroying their efficacy have not been
pursued."
So an execution issued after a year and a day is voidable, but
not void; even the defendant cannot attack it collaterally, and a
levy and sale made under it are sufficient to transfer his
Page 161 U. S. 114
title. Freeman, § 29. In
Brevard v. Jones, 50 Ala.
221, 242, this was so held, and the court remarked: "It can make no
difference if the plaintiff in execution is the purchaser, because
the question is not one of notice, but of the status of the
execution."
In
Steele v. Tutwiler, 68 Ala. 107, 110, the Supreme
Court of Alabama referred to
Morgan v. Evans, 72 Ill. 586,
which ruled that an execution was not void, but voidable, where it
issued on a dormant judgment after the time limited by statute, and
Stewart v. Stocker, 13 S. & R.199, where a similar
ruling was made in respect of an execution issued on a judgment
confessed prematurely, contrary to the terms of a bond, and the
court said:
"In all such cases, though the execution may be erroneous and
irregular, it must be respected and enforced until vacated by
motion to quash, or in some other manner prescribed by law. Freeman
on Ex., § 25. And it is the duty of the party seeking to take
advantage of irregularities or defects of this character to move
with proper diligence at the earliest opportunity. Undue laches is
treated as a waiver of the right, and operates as an irrevocable
renunciation of it. Freeman on Ex. §§ 76, 30. And after a
delay of seven years in this case, without explanation or excuse,
we think the motion comes too late."
And, to the same effect,
see Henderson v. Henderson, 66
Ala. 556, 558. Again it is held that executions issued contrary to
agreement between the parties are subject to the same rules as
other premature executions. In
Cody v. Quinn, 6 Ired.
(Law) 193, it was decided that a memorandum made on the docket,
with the consent of the parties, by the clerk, "No
fi. fa.
to issue until October or until ordered," was no part of the
judgment, and if execution were issued before then it was not void.
In
Townsend v. Fontenot, 42 La.Ann. 890, which was a suit
to restrain the execution of a judgment recovered in a suit to
enforce payment of certain notes, with recognition of a mortgage
and vendor's privilege, the judgment contained the following
statement, prepared and written by plaintiff's counsel and inserted
by plaintiff's instructions: "The attorney of plaintiff in this
suit declares he has been instructed not to seize or sell said
Page 161 U. S. 115
property before the end of the year," and it was held to operate
a stay of execution.
But in the case in hand, the judgment records are complete and
perfect in themselves, and executions were thereby ordered to
issue. The entries as to stay purported to be memoranda of an
agreement of counsel, were evidently placed where they were as
memoranda merely, and did not form part of the judgments. Even if
the entries could be treated as the act of the court and the
executions were improperly issued -- which is not to be presumed
under the circumstances disclosed by this record -- they would not
have been absolutely void and incapable of being validated.
So far as appears, Beebe never took any steps to quash the
executions or to vacate the levy, if any ground existed for doing
so, and the evidence that they issued and were levied was admitted
without objection on the trial. We regard the position now taken on
his behalf as destitute of merit. The circuit court properly
excluded the deed of March 22, 1877, and, this being so, no error
was committed in the charge to the jury.
Judgment affirmed.
MR. JUSTICE GRAY, who was not present at the argument, and MR.
JUSTICE PECKHAM, who was not then a member of the Court, took no
part in the decision.
