Andrews v. Keith

34 Ala. 722

• Court: Supreme Court of Alabama
• Decided: June 15, 1859
• Status: Published

Opinion

STONE, J.

It was settled in this State in 1842, tb-v a sheriff, having in his hands an execution at law ags.t one member of a partnership, may levy such oxeen C'-ti upon the defendant’s undivided interest in the pantnership effects, and, for his own protection, is authorize. - >o take the goods into his exclusive possession. It wa .1 -o ruled in the same case, that in a suit by the firm -it the sheriff, for such seizure, it is not permissible for n-tiffs to prove that their partnership effects were not - ; -re than sufficient to pay their partnership debts. — Mo < v. Sample, 3 Ala. 319 ; Waters v. Taylor, 2 Vosey & B : •); Winston v. Ewing, 1 Ala. 129.

Although there exists in the reported cases oi <->.:or States, much contrariety of decision on this qu. -¡¡.m, (see 1 Parsons on Con. 178 — 9, notes /. and //., - > me the authorities are collected,) we do not feel at ¡iI>■ . to depart from the principle above asserted.

It is laid down in our former adjudications, tint! ■ iff, in levying an execution, should obtain dominio ->n-trol of the goods ; but it is also settled, that if a be made on slaves, when they are not present and u ,he control of the sheriff, this does not avoid the sí ter-wards made by him. — Cawthorn v. McCraw, 9 .19, 526; Cobb v. Cage, 7 Ala. 619; McConeghy v. Caw, 31 Ala. 447; McIntosh v. Walker, 17 Ala. 20.

[2.] It is also settled in this State, that a pur •* r at sheriff’s sale acquires all the legal title which th- Gend-ant in execution owned, and only acquires such title as be bad subject to levy and sale under execution. — Shep. Dig. 635, § 76.

The purchaser at sheriff’s sale under execution, of the interest of one of several copartners, does not acquire a right to the exclusive possession of tide partnership effects. The defendant in execution had no such right. His title is that of a tenant in common with the other copartners, having the rights pertaining to such tenancy; and the effects are liable to the partnership debts to the same extent as they were before the sale. — See Winston v. Ewing, supra; Moore v. Sample, supra; Collier on Part. §§ 822-24; 1 Parsons on Contr., supra; Crocker on Sheriffs, § 434.

[3.] It is generally the duty of the sheriff to have personal property present, in sight, when he sells under execution. He doubtless may refuse, until the purchase-money is paid or tendered, to let the pi’operty pass into the hands of the purchaser. This, however, is a matter for his detei’mination. Whether he is required by the law to make a manual delivery of the property, we need not decide. — Crocker on Sheriffs, §§ 479, 480. Be this principle as it*may, if the sheriff makes it one of the conditions and terms of his sale that he will make actual delivery of the goods, a purchaser has the clear right to stand on the terms of his bargain; and if in such case, the sheriff, without delivering or offering to deliver the goods, but refusing in fact to make the delivery, sue the purchaser for the amount of his bid, he will not be heard to assert that he, as sheriff had no authority to make such bargain, and therefore is not bound by it. We can per'ceive no reason for a distinction between a case of this kind, and a sale by an administrator in which he makes stipulations not required of him by the law. — Stoudenmeier v. Williamson, 29 Ala. 558 ; Atwood v. Wright, ib. 346 ; Rice v. Richardson, 3 Ala. 428 ; Craddock v. Stewart, 6 Ala. 77; Addison on Contracts, 840-42.

• The rulings of the circuit court are in strict accordance with the principles above laid down, and its judgment is affirmed.