Collier's Adm'r v. Windham

27 Ala. 291

• Court: Supreme Court of Alabama
• Decided: June 15, 1855
• Status: Published

Opinion

RICE, J.

The general rule is, that an execution issued after the death of the defendant therein named, without a revival of the judgment, is a nullity. An exception to this rule obtains, where an alias or pluries is issued after his death, to continue a lien which has been acquired by a former execution before his death, and which has not been lost by “ a chasm” or otherwise. — Fryer v. Dennis, 3 Ala. 254; Henderson v. Gandy, 11 ib. 431; Holloway v. Johnson, 7 ib. 660 ; Stewart v. Nuckols, 15 ib. 225.

According to the statements of the complaint, the execution under which the plaintiff made the levy and sale, and took the bond here shed on, is not within the exception, but within the general rule. It was not issued.to continue a lien, for when it issued there was no lion. It was no more than mere waste paper, and conferred no authority upon the plaintiff. The seizure of the property under it was a trespass, and the sale an unlawful act. The bond was given to induce the plaintiff, as sheriff, to sell the property under this void' execution, and did induce him so to sell it; and being thus given to induce the sheriff to do an unlawful act, and under a void execution, it is void, and cannot be enforced in a court of justice. — Renfro v. Heard, 14 Ala. 23.

Although doubts may exist whether the right of property is in a judgment debtor, yet, if the process levied on it by the sheriff is void, it is not lawful for him to take a bond to indemnify him for its sale under such process ; and if in such case he takes such bond, he acquires no right thereby. “ No right can be derived from an unlawful act”, in favor of a sheriff who does the unlawful act. — Fambro v. Gantt, 12 Ala. 298.

Judgment affirmed.