McCaskell v. Lee

39 Ala. 131

Opinion

R. W. WALKER, J.

The time within which a motion to set aside a sale of land under execution must be made, has not been, and perhaps cannot be, definitely settled. The proceeding is of an equitable nature, to be determined upon equitable principles, not always regulated by fixed rules; and we are not disposed to reverse the decision of the circuit judge, upon the question of laches involved in such a case, unless thoroughly convinced that he has erred. In the present case, the motion was not made until over four years after the execution sale, and more than eighteen months after the purchaser at that sale had brought his action of ejectment against the appellant, for the recovery of the land; and the record fails to establish any satisfactory reason for the delay. The record fails to show the precise time of the institution of the ejectment suit, and, for aught that is shown to us, the delay in making the motion may have been nearly two years; it could not have been less than eighteen months. Under these circumstances, without going into the question whether a party, who has purchased from the defendant in execution after the sheriff’s sale, is competent to make the motion, we are not so thoroughly convinced that the court. erred in over ruling the motion, as to feel it our duty to reverse tbe judgment. — See McCollum v. Hubbert & Caple, 13 Ala. 289.

Affirmed.