Whitlock's Adm'r v. Whitlock's Creditors

25 Ala. 543

Opinion

G-OLDTHW AITE, J.

¡¡¡The execution wbicb was issued on the 8th day of March, 1847, was void, Whitlock having died in February previous, and more than a term having elapsed since any execution had been sued out.—Collingsworth v. Horn, 4 S. & P. 237; Holloway v. Johnson, 7 Ala. 660; Henderson v. Gandy, 11 ib. 431. The sheriff who levied the execution was consequently liable to Whitlock’s administrator, who was in law the owner of the property, in trespass; or, as he had sold the goods, and received the money, — the administrator could have waived the trespass, and recovered the amount of the sale (Upchurch v. Norsworthy, 15 Ala. 705); and when the sheriff became administrator, as he had not been charged, the liability still continued. He was a debtor to the estate for the amount for which the goods sold, and, as he could not bring an action against himself, he was properly chargeable with the amount due from him, at the instance of the creditors, on final settlement. — Purdom v. Tipton, 9 Ala. 914.

Judgment affirmed.