Hendon v. Delvichio

• Citation: 34 So. 830,137 Ala. 594
• Parties: HENDON v. DELVICHIO.
• Decision Date: 18 June 1903
• Court: Alabama Supreme Court

34 So. 830

137 Ala. 594

HENDON v. DELVICHIO.

Supreme Court of Alabama

June 18, 1903

Appeal from Law and Equity Court, Walker County; Peyton Norvell Judge.

Suit by Angelo Delvichio against J. H. Hendon. From a decree for plaintiff, defendant appeals. Affirmed.

It was averred in the bill that the complainant was the owner and in possession of an undivided four-sevenths interest in certain land, specifically described; that on May 31, 1899, he was convicted in the county court of Walker county for the offense of an assault with a weapon, and fined $10; that in default of the payment of the fine, or the confession of judgment for the fine and costs, complainant was sentenced to hard labor for the county to pay said fine and costs; that no judgment was rendered in said court against the complainant on said conviction, other than said sentence to hard labor that, notwithstanding this fact, the clerk of said court issued and delivered to the sheriff an execution, commanding him to make out of the property of the complainant $24.30 for the cost of feeding the complainant while confined in jail prior to his conviction; that under and by virtue of his execution the sheriff levied upon the complainant's interest in said land described in the bill, and sold the same; that at said sale the respondent, J. H. Hendon, became the purchaser of complainant's interest in said land, and the sheriff executed and delivered to him a deed purporting to convey to said Hendon all of the complainant's interest in said land. It was then averred in the bill as amended that said sale by the sheriff was void, for the reason that there was no judgment against the complainant on which said execution could be issued, but that said deed being valid on its face, was a cloud on complainant's title to his interest in said land. The prayer of the bill was that said deed be delivered up and canceled as a cloud upon the complainant's title. In the answer filed by the respondent, it was averred that the execution under which the interest of the complainant in the land described in the bill was levied upon and sold was issued in accordance with the provisions of section 4565 of the Criminal Code of Alabama for the purpose of collecting, as a part of the costs against the complainant, an amount due for his board in jail prior to his conviction, and that the issuance of said execution, and the sale thereunder, and the deed under which the...