WHITSETT, GARNER & CO. vs. SLATER, 23 Ala. 626

LIGON, J. 1.

The first exception taken in the court below relates to the ruling of that court in excluding from the jury the evidence offered by the plaintiff, tending to show that one of the defendants in the executions which the sheriff had in his hands u was in possession of a house and lot in Choctaw County, as of his own property, prior to the day on which the executions came into the hands of the defendant in this suit, claiming ownership thereof, and continued in possession until after the return day of the executions.” It does not appear that the sheriff used any exertions whatever to make the money on the writs in his hands out of the lands of any of the defendants, or, indeed, that any one of them possessed lands under claim of title, except the one alluded to in the above exception.

When a proceeding is instituted by a plaintiff in execution, against a sheriff for failing to make the money on an execution in his hands, and the former shows that the defendant in execution was in possession of property which, from its nature, is the subject of levy and sale for the satisfaction of his judgment, it is incumbent on the latter, especially if he has returned the execution 46 no property found,” without an effort to levy on such property, to show that it is not subject to sale for the satisfaction of the judgment.

If the property possessed by the defendant in execution be land, it is not neeessai’y that the plaintiff should show that his debtor is in possession under a deed, in or • der to establish that it is liable to the payment of his judgment. Many possessory interests in lands are the subject of levy and sale under executions on judgments at law, which are not required to he evidenced by deed duly registered.

The written evidence of such interests is generally in the possession of the defendant in execution, ami entirely beyond the control or power of his creditor In such cases, the only evidence which the creditor could adduce on a proceeding like the-present would be parol evidence of such possession and claim of ownership in reference to tho lands by the execution debtor, as would create o. reasonable presumption that he was the owner of such lands, [n such cases it has been held, that, if the defendant in execution has been several years in possession of the premises, under a claim of ownership, and has made improvements thereon, it will authorize the presumption that he has such air interest as is the subject of levy and sale under execution on a judgment at law.— Doe ex dem.

Heydenfeldt v. Mitchell, 6 Ala. 70. Tho facts relied on in that caso to establish the interest of the defendant in execution were all proved by parol, and are of a class which are not ordinarily proved in any other way. The evidence offered in this case is of tho same character, and the facts proposed to be established by it tend as strongly to prove a leviable interest in tho defendant in execution, as did those proved in tho case cited.

The circumstance that the claim of title by the defendant in execution, accompanied with possession, was tnado before the execution came into the hands of the sheriff, can make no material difference, since the plaintiffs offered to show, in connection with that proof, that the defendant, who so possessed the premises and claimed title to them, continued in the uninterrupted possession of them until the return day of the ji. fa.) and there is no pretence that he ever disclaimed his ownership.

Tho law will refer tho subsequent possession to the prior claim of title,' when nothing is shown to rebut such an inference. Although such evidence is not conclusive of title in the defendant in execution, yet it tends to make out, prima fa cie, such an interest as the sheriff might have levied upon, and was consequently admissible. Under such circumstances, if the sheriff1 return the fi. fa. “no property found,” as is the case here, he assumes the burden of proving that the property in the possession of the defendant, which he could have levied upon, is not liable to the execution.—Governor v.

Campbell et al., 17 Ala. 570. 2. The third assignment of error is predicated on the action of the Circuit Court in admitting evidence of the general rumors in the neighborhood of Jacob Boyd, that the slaves Bob and Eliza were the separate estate of the wife of Boyd, and consequently not liable to the plaintiff’s execution.

It is said, in the bill of exceptions, that this evidence was offered “to show an excuse,” on the part of the sheriff, “for not having levied the plaintiff’s execution,” and was admitted by the court, “as it tended to show a reasonable excuse for not levying within a time reasonable for making necessary inquiries, as to the title of the property.” The purpose for which this evidenco is said to have been offered is easily understood, and for that purpose it is wholly inadmissible ; but wo do not clearly understand the purpose for which it is said to have been allowed.

General rumor is, at best, but hearsay, and cannot be receivod to excuse a sheriff for failing to perform a duty imposed upon him by law. If the property held by the defendant in execution does not really belong to him, and the title is in another, this fact, in a proceeding like the present, must bo proved, as title is required to be shown in any other action in which it is called in question.

If the sheriff had such real doubts of the property being liable to the execution in his hands, as to induce him, under our statute, to require indemnity from the plaintiffs in execution before he would hazard a levy ; and if ho required such indemnity within a reasonable time after the writ came into his hands, and the plaintiffs failed or delayed in giving it, he could show such demand, failure and delay, and rely upon this as his excuse for not making prompt efforts to charge the property in execution.— Watson on Sheriffs 195 ; 9 Ala. 30.

But ho will not be allowed to show, that, from neighborhood rumor, he had reason to doubt the ownership of the property, and leave the jury to infer that his negligence was attributable to this cause. Indeed his doubts will not justify any delay on his part, unless he has acted upon them, and demanded indemnity, which the plaintiff has refused or delayed to give.—Robertson v. Beavers, 3 Porter 385, A capricious doubt as to the ownership, or one founded on mere rumor, will not excuse him.—Smith v. Leavitt, 10 Ala. 92.

It was, therefore, erroneous to allow testimony of neighborhood rumors to go to the jury, when if was objected to by the plaintiffs.

The affirmative charge of the court asserts, that, “ if the sheriff received the executions on the 30th of March, 1849, and they were returnable to the Fall term of the Circuit Court of Washington County, and the sheriff had a reasonable doubt whether certain slaves belonged to one of the defendants in execution, he would not be chargeable for want of due diligence, by waiting a reasonable time before notifying the plaintiffs in execution of his doubts as to the liability of the property, and demanding a bond of indemnity; and that from the 30th of March to the first of May was not an unreasonable time.” To this charge exception was taken by the plaintiffs.

The question of what constitutes due diligence, is a mixed one of law and fact. It is for the jury to say whether the proof makes out the facts, which the court determines will constitute due diligence. In this respect, the charge under consideration is faultless.

What constitutes due diligence, must depend materially upon the facts of each case; no general rule can be laid down by the courts which will be of universal application; but we think it may be safely said, that where a sheriff has received an execution against the property of a resident citizen of his county, who is in open possession of personal estate sufficient to satisfy it, and he makes no effort to levy, and uses no diligence to give the plaintiff notice of any real doubts he may entertain of its liability to his execution, that he may have an opportunity to indemnify him, for thirty days after the reception of the process, he is guilty of a want of due diligence.

The court below ruled differently in the charge we are now considering, and in that wre are of opinion it erred. Reasons may often be found which would exempt the sheriff from such an imputation for failing to make a levy for that length of time; but it would be difficult to conceive of any which would justify total inaction on his part, or excuse his negligence in seeking indemnity, if he entertained real doubts whether the property was subject to the process in his hands, for the space of a month after he had received it. Certainly the facts presented by this record will not excuse the delay. 4.

There was no error in refusing the charge asked by the plaintiff in the court below, in the form in which that charge is set out in the bill of exceptions, for the reason that it makes the court affirm that certain facts have been proved, without referring it to the jury to pass upon the credibility of the testimony, and to say whether those facts were proved or not. It assumes a state of facts as proved, and on this predicates a conclusion of law, which the court is asked to give in charge to the jury. Such charges are never allowable in any case.—Bradford v. Mayberry, 12 Ala. 520; Ivers v. Phifer, 11 ib. 535.

But there is error in the directions given to the jury by the court, in connection with its refusal to give the charge requested by the plaintiffs. Those directions assert, as a legal proposition, that the jury have the right, on questions of due diligence, not only, to pass upon the facts, but also to say whether they show the diligence required by law. The former part of this proposition is, clearly correct, while the latter is clearly erroneous, for the court alone can say whether the facts found by the jury to be proved, make out a case of due diligence on the part of the sheriff.—Stanly v.

Bank of Mobile, at the present term. For the errors pointed out, the judgment must be reversed, and the cause remanded.