Ala. Gold Life Insurance v. McCreary

65 Ala. 127

• Court: Supreme Court of Alabama
• Decided: November 15, 1880
• Status: Published

Opinion

STONE, J.

— We feel constrained to reverse the ruling of the special judge in this case, on the authority of Albertson, Douglass & Co. v. Goldsby, 28 Ala. 711, and authorities therein cited. An execution placed in the hands of a sheriff, with instructions to levy, or with no instructions, is an authority and command to him to proceed to make the money; by levying upon and selling defendant’s property, if necessary. Such delivery of execution creates a lien in favor' of the plaintiff, from the date of the delivery. But an execution placed in the hands of a sheriff, with instructions, then or afterwards given, not to sell property, or not to sell until further orders, is not in his hands for any official purpose the law can sanction. The attempt to fasten and preserve a lien by such method, is a constructive fraud on creditors and subsequent purchasers, and postpones the supposed lien thereby attempted to be created,' to the lien of any subsequent execution creditor, who establishes his lien while the older execution is thus kept dormant. — Freeman on Executions, section 206. The lien of the Alabama Gold Life Insurance Company is paramount to that of Mertins, and its judgment must be first paid.

Reversed and rendered.