Knight v. Davis

Supreme Court of Alabama

Knight v. Davis

135 Ala. 139

DecidedNovember 15, 1902

StatusPublished

This text of 135 Ala. 139 (Knight v. Davis) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Knight v. Davis, 135 Ala. 139 (Ala. 1902).

Pincite

Opinion

TYSON, J.

•This appeal is prosecuted from a judgment, of the circuit court, setting aside and annulling a sale by the sheriff, under an execution, of the homestead of the appellees. The judgment, upon which the execution issued, was founded upon a cause of action arising out of a contract — a breach of covenant in a deed. The action, was, therefore, ex contractu, and not ex delicto. 5 Ency. Pl. & Pr., 343 et seq.

As against this execution, the defendants’ homestead was exempt to them from levy and sale.—Code, § 2033 ; Const. 1875, § 2 of Art. X.

[141]*141After the levy -of the execution upon the house and lot occupied by defendant® a® their residence, they interposed their claim of exemptions, in writing, bo it, as their homestead, verified by oa.tli and presented their said claim to the sheriff before a sale -of the property. The claim is regular on its face and 'should not have been disregarded by the sheriff. The sale made by him was an abuse of the process of the court and was properly set aside. The defendants were not put in default by the act of the sheriff in returning- to them the claim with the statement that he was not going to pay any attention to it. It was his duty to respect it and to give written notice t-o the plaintiff in -execution -of its filing with him. His failure to pea-form his duty did not and could not impair the defendants’ rights.—Straughn v. Richards, 121 Ala. 611; Allen v. Towns, 90 Ala. 479; Milligan v. Cox, 108 Ala. 497.

Affirmed

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TYSON, J.

•This appeal is prosecuted from a judgment, of the circuit court, setting aside and annulling a sale by the sheriff, under an execution, of the homestead of the appellees. The judgment, upon which the execution issued, was founded upon a cause of action arising out of a contract — a breach of covenant in a deed. The action, was, therefore, ex contractu, and not ex delicto. 5 Ency. Pl. & Pr., 343 et seq.

As against this execution, the defendants’ homestead was exempt to them from levy and sale.—Code, § 2033 ; Const. 1875, § 2 of Art. X.

[141]*141After the levy -of the execution upon the house and lot occupied by defendant® a® their residence, they interposed their claim of exemptions, in writing, bo it, as their homestead, verified by oa.tli and presented their said claim to the sheriff before a sale -of the property. The claim is regular on its face and 'should not have been disregarded by the sheriff. The sale made by him was an abuse of the process of the court and was properly set aside. The defendants were not put in default by the act of the sheriff in returning- to them the claim with the statement that he was not going to pay any attention to it. It was his duty to respect it and to give written notice t-o the plaintiff in -execution -of its filing with him. His failure to pea-form his duty did not and could not impair the defendants’ rights.—Straughn v. Richards, 121 Ala. 611; Allen v. Towns, 90 Ala. 479; Milligan v. Cox, 108 Ala. 497.

Affirmed

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Bluebook (online)

135 Ala. 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knight-v-davis-ala-1902.

Opinion

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