Wallis v. Rhea

10 Ala. 451

• Court: Supreme Court of Alabama
• Decided: June 15, 1846
• Status: Published

Opinion

COLLIER, C. J.

1. The generality of the objection to the reading of the deposition was such, that the circuit court might, with perfect propriety, have overruled it. Undefined objections should never be made to the admission of evidence ; and it may be laid down generally, that if the party making them, will not particularize, the court is not bound to cast about for the grounds upon which, in the mind of counsel, they are rested, but may promptly disregard them. Justice itself, the dignity of judicial proceedings, and the certainty of the law, all impel to this conclusion. We may, however, add, that the objections stated by the counsel for the plaintiff in error, in his argument here, are not such as should have induced the rejection of the deposition.

The act of 1828, requires that “ all deeds and conveyances of personal property in trust, to secure any debt or debts, shall be recorded in the office of the clerk of the county court of the county wherein the person making such deed or con-veyence shall reside, within thirty days, or else the same shall be void against creditors and subsequent purchasers without notice.” [Clay’s Dig. 255, sec. 5.] Under this statute, it has been held, that the want of registration, within the time prescribed, would not render the deed inoperative against a creditor with notice, who had not acquired a lien on the property embraced by it. . [Smith & Co. v. Zurcher, use, 9 Ala. Rep. 208; Daniel v. Sorrelle, and another, Id. 436¿] The failure of the claimant to record his deed, did not make it absolutely void, but merely void “ against creditors and subsequent purchasers without notice.” There is nothing in the record to indicate that the plaintiffs in execution acquired a lien on the slave in question, previous to the execution of the deed. Their judgment was rendered in the circuit court of Morgan, and the ft. fa., which was levied, appears to be an alias execution, yet we are not informed to what county its predecessor issued ; if to one in which the slave now in controversy was not to be found, it could not have operated a lien upon him. From this view, it results that the deed was admissible that the claimant might, if he could, have shown that the plaintiffs in execution were informed of the existence of the deed before the time prescribed for its registration. If he failed to prove a notice or an excuse for the failure to record the deed, if any other were available, it would, of course, be inoperative, and the duty of the court so to instruct the jury.

By the act of 1828, “ the better to provide for the trial of the right of property, and for other purposes,” it is made the duty of the jury, in all cases, when they shall find the property subject to the execution, to find the value of each article separately ; and if the claimant shall fail to deliver the same, or any part thereof when required by the sheriff, it shall be the duty of the sheriff to go to the clerk and indorse such failure upon the bond returned by him: whereupon, the bond shall have the force of a judgment, and the clerk shall issue execution against the claimants, and his or their security as securities, for the value of the property not delivered, as assessed by the jury, with interest from the date of the verdict. [Clay’s Dig. 213, sec. 64.] There can be no question but the judgment of condemnation against the claimant may be satisfied by the payment of the costs of the trial of the right of property, and the amount collected upon the execution under which the levy was made. If the judgment in favor of the plaintiffs for ¡§700, in the event of the failure to return the property, makes it obligatory upon the claimant to pay that sum, though the execution against which the claim was interposed is not for more than one-fourth the amount, there can be no doubt but it is erroneous. Yet we incline to think that the error is a mere clerical misprision, amendable in the court below, on motion, and may be here corrected, at the costs of the plaintiff in error. But we need not decide the point, as upon the second question considered, the judgment is reversed, and the cause remanded.