Brown, Toler & Phillips v. Hurt & Bro.
Supreme Court of Alabama
Appeal from the Circuit Court of Perry. Tried before the Hon. Andrew B. Mooee. The slave in controversy in this case was levied on by the sheriff, as the property of Robert W. Stone, under an execution in favor of Hurt & Brother.
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Appeal from the Circuit Court of Perry. Tried before the Hon. Andrew B. Mooee. The slave in controversy in this case was levied on by the sheriff, as the property of Robert W. Stone, under an execution in favor of Hurt & Brother. The claimants derived title under a mortgage executed to them by said Stone, dated January 31, 1852, the law-day of which ivas the 1st May next thereafter; and they proved the validity of their debt, and their possession of the slave at the time of the levy, which was subsequent to the law-day of the mortgage. The plaintiffs’ judgment was rendered on the 28th…
1Opinion of the CourtBice, C. J.
— When an execution is n'ot void, but is voidable only, and has not been quashed or set aside, the claimant, on the trial of the right of property, cannot inquire into its regularity. However erroneous such execution may be, lie cannot collaterally assail it, on such trial. When the execution is a nullity, or when it has been set aside or quashed for irregularity, he may avail himself of that to defeat the plaintiff on the trial of the right of property. — Blount v. Traylor, 4 Ala. 667; Harrell v. Floyd, 3 Ala. 16 ; Huff v. Cox, 2 Ala. 310; Fryer v. Dennis, ib. 144; Bettis v. Taylor, 8…
2Cases cited13 opinions
- Jackson ex dem. M'Crea v. BartlettNew York Supreme Court · 1811
- Johnson v. HarveyMassachusetts Supreme Judicial Court · 1808
- Bettis v. TaylorSupreme Court of Alabama · 1839
- Huff v. CoxSupreme Court of Alabama · 1841
- Chambers v. StoneSupreme Court of Alabama · 1846
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3Cited by3 opinions
- McDonald v. StephensSupreme Court of Alabama · 1920
- Nordlinger v. GordonSupreme Court of Alabama · 1882
- Ross v. Lewyn MartinCourt of Appeals of Texas · 1893