Melville Fuller

“ According to the settled rule in Alabama, where an execution comes to the hands of the sheriff, the lien attaches, and continues from term to term, provided alias and pluries writs are duly issued and delivered; and while it is so kept alive the lien is, upon levy and sale, paramount to any intermediate conveyance of the debtor. ”

“ Ex'ns (2d Ed.) , §§ 25, 26, et seq. (a text-book cited and relied on in numerous decisions of the supreme court of Alabama) , it is said that the decided preponderance of authority is in favor of the proposition that the premature issue of an execution is an irregularity merely; that the execution is erroneous, but must be respected, and may be enforced until it is vacated in some manner prescribed by law; that no one but the defendant can complain of it, and even he cannot do so in any collateral proceeding. ”

“ The liens of executions as between different judgment creditors, and between judgment creditors and purchasers from the defendant for valuable consideration, are hereby declared to be: that if an entire term elapse between the return of an execution and the suing out of an alias, the lien created by the delivery of the first execution to the sheriff is lost ”

“ They were not void, because the marshal could have justified under them; and, if voidable, the proper means of destroying their efficacy have not been pursued.' So an execution issued after a year and a day is voidable, but not void; even the defendant cannot attack it collaterally; and a levy and sale made under it are sufficient to transfer his title. ”

“ And it is the duty of the party seeking to take advantage of irregularities or defects of this character to move with proper diligence, at the earliest opportunity. Undue laches is treated as a waiver of the right, and operates as an irrevocable renunciation of it. ”

“ If valid executions were issued and delivered to the marshal as early as January 23, 1877, and, on return, alias executions were issued and duly levied, then the subsequent sale related back, and took the legal title out of Beebe, prior to March 22, 1877 ”