Sheffey v. Davis

STONE, J.

Motion was made in this case to quash executions, and the returns thereon, and to set aside a sale of land thereunder, on certain specified grounds. The court sustained the entire motion, and the purchaser at the sale, plaintiff below, excepted. It is contended here that, inasmuch as the record fails to affirm that it contains all the evidence, we must presume the existence of a sufficient cause to justify the action of the court, even if the grounds stated in the motion be held insufficient. We can not assent to this. A motion is not, strictly, pleading; and, although a demurrer may sometimes be interposed to such motion when in writing, yet, in motions such as this, pleading is not necessary. We feel it our duty to presume, in the absence of some record averment to the contrary, that the action of the court was had on the motion copied in the record. Such action is, at most, but a response of the court to a motion made by counsel; and it would be a high-handed measure for a court to make an order unsettling titles to property, or destroying the evidence of title, without any motion therefor, and without stating any facts, or giving any reason for such decision. We will consider the judgment of the court as based on one or more of the grounds stated in the motion.

2. When Z. P. Davis became a voluntary bankrupt, Mrs. Sheffey, as executrix, had an execution lien on his property in Madison county. His bankruptcy did not destroy that lien, or prevent the issue of an alias execution for its enforcement.—Crow v. Reid, at December term, 1876.

8. The claim of exemption furnished no reason for setting aside the levy or sale, for several reasons. First, it failed to show the value of the property at the time of Mrs. -Sheffey’s levy and sale.—Watts v. Burnett, at December term, 1876. Second, it failed to show that the claim was interposed before the sale was made.—Steele v. Moody, and Rottenbury v. Pipes, at December term, 1875. Third, the judgment having been rendered in 1871, it should have been shown whether the debt was contracted before or after the constitution of 1868 was declared operative, so as to show under what law the claim accrued.—Taylor v. Anthony, and Miller v. Marx, at December term, 1876.

4 If Mrs. Davis, by her older purchase, acquired a good and valid title to the property, it will enable her to defend successfully the action of ejectment brought for its recovery. It furnishes no ground for setting aside the levy and sale afterwards made.—Nuckols v. Mahone, 15 Ala. 212; Cawthorne v. Knight, 11 Ala. 268.

None of the grounds stated in the motion justified the ruling of the Circuit Court; and its judgment is reversed, and a judgment here rendered, overruling the motion made in the court below.

Brigkell, C. J., not sitting, haying been of counsel,