NEWCOMBE vs. J. W. & R. LEAVITT, 22 Ala. 631

GIBBONS, J. It is the settled law in the State of Alabama, that an execution creates a lien from the date of its receipt by the sheriff, on the personal property of the debtor, within the body of the county to which it runs. It is also settled by judicial decision, that this lien is not lost, but suspended merely, by a removal of the property from the county where the lien first attached to another county in the State, if the creditor permits no term to elapse without the issue of an execution. Hill v. Slaughter, 7 Ala. 632. It is also decided in the case of McMahan v.

Greene, 12 Ala. 71, that the lien created by the issue of an execution is not defeated by the removal of the property beyond the borders of the State and a sale of it there, if the purchaser brings it back to this State ; and that the purchaser in the foreign jurisdiction, if he comes with the property to this State, cannot by such purchase defeat the lien which had been regularly continued by the issue of executions, as prescribed by our statutes. It is difficult to gather from the decision in this case the principle on which it rests.

The facts of the case were, that a negro woman, on which a lien was created by the delivery of an execution to the sheriff in Pike county, was run off to Florida, and there sold to a purchaser, who bought with full notice of the circumstances under which she left Alabama. The purchaser brought the negro woman back to Pike county, and she was then seized by the sheriff, by virtue of an alias execution in his hands. The facts of the case do not show whether the sale was fraudulent or bona fide, other than that the purchaser bought with notice of the lien.

Neither does the court state, with any distinctness, upon what ground it bases its decision. We cannot gather from the decision whether it was placed upon the ground that the sale, with notice of the lien, in the foreign jurisdiction, w^ a badge of fraud, and therefore the transaction was colorable; or, whether it was upon the ground, that the lien created by the execution followed the property, and therefore the purchaser took it cum mere. The latter idea, however, is somewhat negatived by the reasoning of the court.

The lien created on personal property by an execution, is dependent upon two facts, which must exist concurrently; the one, an execution in the hands of the sheriff, the other, the property of the debtor in the county where the execution is running. Either of these failing, no active lien exists.

Even after the lien has been created, if the property is removed from the county where it was created, the lien is said to be suspended, that is, the property does not carry the lien with it, as a right attached to it in favor of the creditor, but goes, liable merely to have it revived by the issue of another execution to the county where the property is carried. If no execution is sent to that county, then tbe old lien created in the county from which the property is removed, is lost forever. Hill v. Slaughter, supra.

This reasoning, applied to a case where the property had been removed beyond the limits of the State, would also tend to show, that, when the property passed the borders of the State, it passed divested of the lien entirely, as the process of this State could not run beyond its limits; and a Iona fide purchaser for value would take it, as it would seem, in the condition in which he found it. However this may be, we do not deem it necessary, in the present ease, to express an opinion as to the correctness of the conclusions to which the court arrived in the case of McMahan v. Greene.

Nor do we deem it necessary to decide what the right is, if any, that property on which a lien has been created, by placing an execution in the hands of the sheriff, carries with it when it is transported from the county in which the lien was created beyond the limits of the State. Our decision will be placed upon other grounds. The proof in this cause discloses, that the statute of limitations in the State of Mississippi, for the recovery of personal property by action of trover, detinue, &c., is three years. This act was passed the 4th day of February, 1844.

The proof further tends to show that James Jack, in 1848, after acquiring the negroes in question from Fields, the defendant in execution, sold them to Abner Jack, who held them until 1846, and then sold them to the claimant, who held them until 1848, and then brought them to Sumter county, Alabama; that both Abner Jack and the claimant resided in the State of Mississippi during the periods above named, and there held said negroes as their own, adversely to all the world.

The material question arising upon this proof is, what effect has the lapse of time upon the title of the claimant, under the laws of Mississippi, and while the claimant and said Abner Jack, through whom he claims, remained in Mississippi with the property in question? and also, how is the plaintiff's lien affected by it ? The statute of limitations in all the States of this Union, so far as it affects rights to personal chattels, acts not merely upon the remedies for their recovery, but upon the title itself; so much so, that a title vicious in its inception, ripens into a perfect one by mere lapse of time.

It is emphatically a statute of repose, and should be upheld in all cases where it is invoked, if the principles by which it is governed are applicable to the case. "We apprehend it will not be denied, that where property is taken, even tortiously, from the real owner residing in one State, and carried into another and there sold to a bona fide purchaser for a valuable consideration without notice, such purchaser, after he has held the property adversely a sufficient length of time to make a title by the statute of limitations of the latter State, may defend it successfully, even against the true owner.

This court has gone so far as to say, that such a purchaser could defend successfully, even though the title of his vendor had commenced by fraud, force or felony. Howell v. Hair, 15 Ala. 194, and eases cited. If this would be the law as to the actual owner of property, who had a perfect and complete right to it, when it left the State where he held it; on what principle of analogy or of right is it, that a party who claims a mere lien on property could stand in a higher or better position?

The statute of limitations, as we have above remarked, when it begins to run, acts upon the title of the property, and perfects it against all persons and claims whatsoever not excepted by it.

Could it be contended, that, if this property had remained in the State of Alabama, and instead of being removed to another State, had been removed to another county, and there sold to a bona fide purchaser without notice, who had held it adversely to all the world for six years, such purchaser would not have a good title, although the lien of the execution had been regularly kept up in the county where it first attached, by the regular issue of executions from term to term?

We could not hesitate, in such a case, to say that the creditor could not enforce the lien upon the property in the hands of such a purchaser, because time would have made him a title, independent of his purchase, and divested of all liens not duly recorded.

Again; suppose this purchaser should afterwards take this property to the same county where the lien had first attached upon it, where an execution was still running on the same judgment, and that executions had been regularly continued from term to term up to that time; could it be contended, that the old lien would be revived and re-attach to the property, so as to defeat the title which the statute had made for the purchaser ? If so, then the statute, instead of being efficient for the repose and quietude of titles, would be rather a delusion.

If such would be the effect of the statute in the State of Alabama, how much more forcible is the argument when applied to a title acquired by it out of the State? But it is said, the statute did not begin to run against the creditor, and in favor of the claimant, in the State of Mississippi, because the lien created by the execution was not such ■a right as could be enforced in a foreign country; and that it was not such a right authorities are cited to prove.

As we have above stated, we do not pretend to decide in this case what right, if any, was attached to this property in favor of the plaintiff in execution, when it was carried beyond the limits of the State of Alabama. Assuming, however, that there was a right, we must suppose that there was some mode of enforcing it, in the forum to which the property was carried. It rarely happens, in any of the States of this ITnion, that a party having a right in any one of them, cannot find a remedy there to enforce it.

The courts of each State, by comity, on principles of international law, lend themselves to enforce the rights of non-resident suitors, as they shall be found to exist; and if the right arose in a foreign jurisdiction, the inquiry which the courts make is, as to the existence of the right according to the law of the place where it is alleged to have arisen, giving to the party his remedy according as it is found to exist or not. Story’s Conflict of Laws 335, § 402.

If the party claiming such right, does not follow the property, and enforce it, but lets it remain in the hands of a bona fide purchaser, until by the law of the land time makes him a title good against all the world, he cannot complain that his rights are barred.

If, on the other hand, no right was attached to the property, by virtue of the execution lien, which followed it to the State of Mississippi, then títere was nothing to enforce in the forums of that State, and the purchaser there would take it, like any other purchaser, from a vendor who had the right to sell it, and his title in that case would seem to be good, in spite of tbe lien which had attached to the property before it left the county where the execution was running against it.

But in either case, the purchaser of the property would be entitled to the benefit of the statute of limitations, and this statute would mate him a title, independent of his purchase, and against all other titles or claims not excepted by it. We prefer placing our decision in this case upon this ground, because, in doing so, we make it consistent with the case of McMahan v. Greene, and, as above stated, we do not wish to be understood as expressing an opinion as to the correctness or incorrectness of that decision.

That case seems expressly to provide for a case like the present, and to except from its influence a title acquired by the statute of limitations in a foreign country. Our conclusion, then, is, that inasmuch as the charge of the court cut off the claimant from all benefit which he might have derived from his title by the statute of limitations, whilst the proof warranted him in availing himself of it, the court erred in its charge. The charge asked by the claimant stated the law correctly, and should have been given to the jury.

"We think the court also erred in admitting the declarations of Fields, the defendant in execution, to be given in evidence to the jury. It appears by the bill of exceptions, that these declarations were made one or two days before the negroes were removed, and were made to the witness when he and the witness were alone together.

This testimony was objectionable on two grounds: first, because it was too remote from the actual removal to form part of the res gestae; and second, if it was given with a view to show a fraudulent intent on his part, it would be incompetent unless it was connected with the claimant or some one through whom he claimed. The rule is, that, although the vendor of property may act with a fraudulent intent in the sale or conveyance of it, still such' sale or conveyance is not void, if the vendee or grantee acts bona fide. Both the vendor and vendee must participate in the fraud, in order to vitiate the sale.

The judgment of the court below is reversed, and the cause remanded.