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19 Ala. 132

Weir v. Clayton

Supreme Court of Alabama

Decided January 15, 1851

Supreme Court of Alabama · decided 1851-01-15

EiatoR to the Circuit Court of Benton. Tried before the Hon. L. P. Walker. This was an action of trespass to try titles to certain lands, instituted by the plaintiff against the defendant in error. The defendant claimed under a sheriff’s sale. 1. An order of the Circuit Court to sell land levied on by a constable under an execution issued by a justice of the peace, is not a final judgment, nor in the nature of such judgment. It is at most only a confirmation of the levy.

Relies on Ware v. Bradford

Good law ✅— No negative treatment on recordhow we know

Decided 1851-01-15

How this case has been cited

Cited by 4 later decisions — most recently April 1935

4 state decisions

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Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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PARSONS, J.

¶1The land was sold by the sheriff in 1839, under orders of the Circuit Court of Benton, made upon the returns of a constable on three executions issued by a justice of the peace. Luckey was a defendant among others, in each of the executions, and the legal title to the land was in him. The defendant claims by a regular chain of conveyances from the purchasers at the sale. The executions from the justice and the levy by the constable are recited in the orders, and the order states that the proceedings Avere regular.

¶2The executions were read in evidence on the trial, and the constable’s return was, “ Levied the within on the N. E. ‡ of the N. E. y of section 21, township 15, range 11 E., in the Coosa land district, as the property of Catherine Weir and J. P. Luckey; pointed out by the plaintiff, — 16th Dec. 1838.”

¶3The act of 1818 (Clay’s Dig. 201, § 31,) provides that when necessary for want of personal property to levy such executions on land, the officer levying the execution is to return it to the next Circuit Court of his county, and the court, on motion of the plaintiff, u and it appearing by an exhibition of the proceedings before the justice, that tho same have been regular,” is to order a sale of the land, or whatever part thereof may be necessary to satisfy the execution. The plaintiff’s counsel contend that the defendant’s title is bad, because it does not appear that there was a want of personal property, or that the defendant was notified of the levy.

¶4But he attacks the title collaterally, Avhich cannot be done up*135on tbe ground of any sueb irregularities.—Ware v. Bradford, 2 Ala. 676; Love & Williams v. Powell, 5 ib. 58.

¶5It is contended that the orders are void, because they do not show-that the land was in Benton county, or mention the land district. But they recited an execution issued by a justice of Benton and levied by a constable of Benton, and then state the numbers of the land. This we think Was sufficient.

¶6If the defendants in execution were injured by the irregularities, they had a direct remedy, and upon that they must rely.

¶7The judgment is affirmed.

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