The bill of exceptions informs us, that “ after one of the counsel for the plaintiff in the motion had closed his argument, the defendant’s counsel was proceeding to argue the case, when he was interrupted by the court, and informed that he should charge the jury, if they believed the evidence, that the land was subject to" levy and sale under the plaintiff’s execution, and that the sheriff was liable in not making the levy, and in fact did *282so; to which charge the defendant excepted.” The majority of the court think, that the extract from the bill of exceptions above set out affirmatively shows that the charge on the effect of the testimony was given by the court mero motu, and that the judge was not required by either of the parties to give it; and that, therefore, the court must be held to have violated that part of section 2274 of the Code which prohibits the court to “charge upon the effect of the testimony, unless required to do so by one of the parties.”
In my opinion, the extract from the bill of exceptions affirms neither the one way nor the other, as to whether the charge was required; and it is our duty to presume, in the absence of evidence to the contrary, that the court acted lawfully, and did not give the charge unasked. I think the judgment of the court below ought to be affirmed, upon two grounds—1st, that the bill of exceptions does not purport to set out all the evidence, and we must presume that the evidence justified the charge; and, 2d, that if the evidence is all set out, the charge was correct, on the authority of Gimon v. Davis, (36 Ala. 689,) which holds, that the mere destruction of a deed does not divest the title of the grantee; and of Long v. McDougald, (23 Ala. 413,) and Coleman v. Hair, (22 Ala. 596,) which show that the adverse possession of land, as against the defendant in execution, is no legal reason why it should not be levied on and sold. The majority of the court think it unnecessary to pass upon the merits of the case, because all the evidence does not appear to be set out.
In accordance with the- opinion of a majority of the court, the judgment is reversed, and the cause remanded.