De Loach v. Robbins

• Decision Date: 08 February 1894
• Court: Alabama Supreme Court
• Parties: DE LOACH v. ROBBINS.

14 So. 777

102 Ala. 288

DE LOACH v. ROBBINS.

Supreme Court of Alabama

February 8, 1894

Appeal from circuit court, Monroe county; James T. Jones, Judge.

Statutory real action, in the nature of ejectment, by John De Loach against T. J. Robbins. From a judgment for defendant plaintiff appeals. Reversed.

The plaintiff proved, that he, as administrator of John Black, at the fall term, 1868, of the circuit court of Monroe county recovered a judgment against the defendant, T. J. Robbins for the sum of $684.95, besides costs of suits; that at the spring term of said circuit court, 1873, one John B. Colly recovered a judgment against defendant, for the sum of $239.53; that executions were duly issued on each of these judgments, returnable to the next term of the court, after their rendition, respectively. The date of the first-named judgment was mentioned in the original execution as the 15th of October, 1868, and that of the Colly judgment, in the first execution issued on it, as of the 24th of April, 1873. These executions were numbered, respectively, 2,774 and 4,573. Alias executions, Nos. 5,713, 5,853 and 423, issued on said first-named judgment, on the 25th October, 1876, the 15th May, 1877, and the 9th June, 1885, respectively. In Nos 5,713 and 5,853, the date of the judgment is given as the 13th October, 1868. In No. 423, issued on the 9th June, 1885 the judgment is correctly described in all respects, except its amount is stated to be $684, and its date, as the 20th April, 1871. Before offering the last-named execution, with its indorsements, showing a levy on the lands in question and their sale by the sheriff and its return to the clerk, the plaintiff, in order to identify the judgment in evidence as the one mentioned in said execution, and to explain its date as given in said alias execution, testified that he was the clerk of the court at the time said judgment was rendered, and for about 20 years afterwards; that he, neither as administrator nor personally, had ever recovered or had or controlled any other judgment, at that, or any other term of said court, against the defendant, T. J. Robbins, other than the one offered and admitted in evidence; that all the executions in evidence, and the one then offered,-No. 423,-he directed the clerk of the court, J. W. Leslie, to issue at their respective dates; that he was present at the sale made by the sheriff, under said last-named execution, of the lands described in the levy indorsed thereon, and became the purchaser thereof, at the price stated in the return on said execution. Said J. W. Leslie testified, that he had been the clerk of said court for many years before, after, and at the time of the issuance of said execution, No. 423, and that he issued it at the instance of said De Loach, on his said judgment, as administrator of John Black, deceased, against said T. J. Robbins, and on no other; that he was acquainted with, and had frequently examined the records and minutes of said court, and there was no other judgment therein or thereon, in favor of said John De Loach, administrator, against said defendant, Robbins, (except this one.) The defendant objected to the introduction of said execution with its indorsements, in evidence, on the ground of a variance in the date of the judgment described in the execution, and the judgment. In order to further identify said execution as having been issued on said judgment, and to explain the variance as a clerical mistake, the plaintiff offered to introduce in evidence the execution docket of the clerk of said court to show the entries thereon, of all the executions and returns issued on said judgment, showing that from the first execution to the last offered, they were on the same judgment, as appeared by the references from one to the other, and by their marginal numbers. The defendant objected, as before. The court sustained the objection and would not allow said docket to be introduced for the purposes specified, and also sustained defendant's objection to the introduction of said execution, to each of which rulings the plaintiff separately excepted. The plaintiff then offered in evidence, in connection with the foregoing evidence, to sustain the admissibility of said execution, the deed of the sheriff in due form, properly executed and with appropriate recitals, to show the conveyance to plaintiff, as purchaser under said judgment, execution and levy, of all the right, title, interest and estate of the said T. J. Robbins, defendant, in and to the lands therein described, and which are included in the complaint. But, upon the same objection as was raised by defendant to the introduction of said execution, and against the exception of plaintiff, the court excluded it. Afterwards, the plaintiff introduced another alias execution, No. 47, purporting to have been issued on said judgment, on the 14th May, 1891, in which said judgment is correctly described as in the original execution, with the exception of a variance of one day in the date of the judgment, the original reciting, that it was rendered on the 15th, and the alias, that it was rendered on the 14th October. In connection with this offer the plaintiff offered the same proof that had been made for the introduction of the former execution, No. 423, but the court would not admit it, and the plaintiff excepted. To the introduction of this last-named execution, with its indorsements of levy and sale, the defendant objected, "on the single ground," that no other execution had issued on said judgment within 10 years before the date of the issuance of said execution, and it was therefore void, and the sale under it invalid. This objection was sustained by the court, against the exception of the plaintiff, and the evidence excluded. But the record shows, the deed of the sheriff, founded on a sale under said execution, was admitted in evidence without objection. Recurring to the Colly judgment and executions: The record shows, that several executions after the first, were issued on said judgment, at different dates, from 1873 to 1891, and the last one, No. 46, issued on the 14th of May, 1891,-the same date of the issuance of the alias in the other case,-describes the judgment in evidence accurately, and which, coming to the hands of the sheriff, was levied upon the lands in question, being the same lands, on which the execution No. 47 in the case of Mr. De Loach as administrator of John Black was levied, both executions having been received by the sheriff on the same day, levied on the same property, which was sold on the same date, under both executions-Nos. 46 and 47. At said sale the plaintiff became the purchaser, at the highest and best bid, and the sheriff executed in due form, reciting all the considerations and facts necessary to convey "all the right, title, interest and estate of the said T. J. Robbins in and to said lands" under execution sale, to the plaintiff as such purchaser. There were some inaccuracies of description in...