Appeal from the Chancery Court of Henry.

Heard before the' Hon. N. S. Gbaham.

In March, 1871, Corbitt, as administrator of Lawrence, obtained in the Circuit Court of Henry county, Ala., a judgment for $587.21 against John L. Eowler. Execution issued on said judgment April 3, 1871, which was returned as follows: “Returned by order of plaintiff’s attorney, August 1, 1871.” “Trawick, sheriff.” An alias execution issued Nov. 10, 1871, which was returned by the sheriff with the following indorsement thereon: “Sheriff will not levy this fi-fa. until further orders. Jan. 8, 1872.” “J. A. Corbitt.” No other execution was issued until Oct. 80th, 1872, which the sheriff returned indorsed as follows: “Held up by order of plaintiff’s attorney, Nov. 29,1872.” The next execution was issued Nov. 19,1875, which was returned indorsed by the sheriff: “No property found.” The next execution was issued May 2d, 1876, and returned also indorsed: “No property.” The next execution was issued Oct. 14,1876, which was levied on certain lands in Henry county, Ala., described in the bill.

The bill in this case was filed Nov. 27th, 1876, and service accepted by defendant Corbitt same day. The land levied on above was sold Dec. 4,1876, and bought by J. A. Corbitt, one of the defendants. On the 19th day of January, 1872, the complainant’s testator took from said Eowler a mortgage on the lands levied on, under the execution last mentioned, to secure a debt of $1,471, due January 1,1873. Said debt and mortgage were bona fide and for a valuable consideration then and there given, and complainant’s testator had no actual knowledge of Corbitt’s judgments. The good faith of tbe mortgage and mortgage debt were shown. The question raised by the record is, “was the hen of the plaintiff in execution preserved as against the mortgagee ?” The assignments of error go to the decree of the court in dismising complainant’s bill, and holding that the execution lien was superior to the mortgage.

1. The execution which issued Nov. 10, 1871, and on which plaintiff in execution, on the 8th day of January, 1872, indorsed as follows, “sheriff will not levy this fi. fa. until furthers orders,” was, by said indorsement, taken out of the hands of the sheriff, and that when, on the 19th day of January, 1872, eleven days after-wards, the complainant’s testator, in good faith and for a valuable consideration, took his mortgage on the lands after-wards levied on, he was protected under the act “For the protection of bona fide purchasers for a valuable consideration.” — Acts 1868, p. 266. Especially in view of the fact that no other execution was issued until Oct. 30, 1872, this court will take judicial notice of the fact, that between Jan. 8th, 1872, and Oct. 30th, 1872, two terms of the Circuit Court of Henry county had been held. We insist that under the foregoing facts the lien of the plaintiff in execution was lost. — Pamph. Acts of 1868, p¡ 266; Revised Code, § 2873.

…

Citation profile

Relationships

How this case has been treated — in progress