Branch Bank at Mobile v. Ford. dler bore date when no valid execution was in his hands, nor any authority to receive the money on the judgment. Another execution was issued, on the same judgment, and came to the hands of the sheriff of Perry county, on the 23d November, 1846, which was levied on lands of Ennis Ford. This execution was returned without a sale of said land, to the February term of the county court, 1847. A venditioni exponas came to the sheriff's hands, on the first day of March, 1847, which was returnable to the second Monday of June; and on the 21st day of August, 1847, another fi. fa. was issued on the same judgment, which, on the day of October, 1847, was levied on the slave claimed by the claimant, Ford. No execution was issued returnable to the June term of the county court, 1847, except the venditioni exponas. The claimant purchased the slave of Ennis Ford, on the 28th October, 1846, for a full and fair price, received a bill of sale for him, took possession, and retained that possession until the levy. The bona fides of the sale from Ennis Ford to Benjamin Ford, were admitted. These facts were all admitted, and the question of law submitted to the court, with an agreement, that a verdict and judgment should be entered, in conformity with the opinion of the court. The court decided the law in favor of the claimant Ford; whereupon, a verdict and judgment were rendered. The bank here assigns as error, that the judgment of the court on the facts agreed, should have been for the plaintiff. DAVIS, for plaintiff in error. The questions are-1. Was the lien continued by the issuance of the venditioni exponas in the form thereof shown in the transcript. 2. Does the defendant, by his purchase, while the plaintiff's execution bound the slave, acquire a good title to the slave, by reason of the neglect to issue a fi. fa. as well as a venditioni exponas, between February and May terms of the court in 1847? Bacon's Abrid. Execution; Collingsworth v. Horn, 3 Stew.; 5 Ala. 59. GARROTT, contra. Branch Bank at Mobile v. Ford. DARGAN, J.-The rule is so well established, that a claimant of property cannot be permitted to question the propriety of the judgment, or the regularity of the execution, that it is unnecessary to refer to the numerous decisions in support of it. A claimant shall not be permitted even to show the satisfaction of the judgment. But I understand this rule to be limited to this extent, that the claimant shall not sustain his claim by showing such defects or irregularities. In the case at bar, the title of the claimant is older than the lien of the plaintiff, unless the plaintiff can show, that his lien is older than the date of his execution, or the time when it came to the hands of the sheriff. If we look, therefore, to the date of claimant's purchase, and to the execution only, the property is not liable to the execution; the sale is admitted to be bona fide. The plaintiff, then, must show that his lien he is seeking to enforce, has an older origin than the claimant's purchase: he must show a valid subsisting lien against the slave, at the time of the sale from the defendant in execution, to the claimant. The claimant has the right to controvert the existence of this lien, or to show that it has been lost. If this is not the law, then the trial of the right of property can never protect a purchaser from the defendant in execution, although the judgment may be ten years old, or the lien expressly abandoned. But all will admit, that if the title of the purchaser is older than the execution levied on the property, it is necessary that the plaintiff should go back, and show that he is prosecuting a lien, older than the claimant's title; and if his proof should not show a valid lien, older than his title, he must fail. So, if his proof shows that his lien is lost. The return made by the sheriff, on the execution delivered to him on the third of October, 1846, under the directions of the bank attorney, is this: "The sheriff will return this execution, as the judgment is satisfied on which it issued, as per D. Chandler's receipt lodged with me, dated first April, 1841. The branch bank will rule the sheriff." This return was made on the fourth November, 1846. The title of the claimant bears date 28th October, 1846. What is the effect of this return? In the case of Haden v. Walker, 5 Ala. Rep. Branch Bank at Mobile v. Ford. 89, the return was, "the defendant in this case has settled with the plaintiff's attorney, as per his receipt;" and this court held this to be a return of satisfaction. The return in the case now before the court, must also be considered as a return of satisfaction. The execution, then, returned the fourth of November, 1846, is satisfied. Although this return was made under a mistake, yet it is well settled, that after it is made, an alias execution cannot be legally issued, without some action of the court amending the return, or setting it aside. See 1 Porter's Rep. 30; 5 Ala. Rep. 89. No action of the court has ever been had, to correct this return, and so far as the facts agreed show, it is still standing as the return. Can the lien of the execution continue, after the right to issue an execution is gone? That is, can it continue, so as to defeat a bona fide purchaser? An injunction bond discharges the lien; so does a writ of error bond; or if the plaintiff enter into a contract with the defendant, by which the right to issue execution is lost, the lien is lost with it. A lien is said not to be a title in, or to the thing, bound by it; but a mere right to subject the goods to the payment of the debt. From its very nature, when the right to subject the thing to the payment of the debt is gone, and the lien is this mere right, of course the lien is gone. We therefore come to the conclusion, that the plaintiff has failed to show an older lien than the title of the claimant, and consequently, the property is not subject to the execution, for it can only be subject to the execution, by showing, that the plaintiff was seeking by his execution, to enforce a lien older than the plaintiff's title. The judgment of the circuit court is therefore affirmed. King v. Shackleford. KING v. SHACKLEFORD. 1. One executor, who is also a creditor of the estate he represents, may file his petition in the orphans' court, and compel a settlement and distribution of the estate, his co-executor having assets for which he fails to account. 2. There is no statute in this state authorizing the transfer of a cause from the orphans' court to the circuit court, and an order making such transfer is a nullity; and if the orphans' court, influenced by such order, repudiates the jurisdiction of the cause, and dismisses it, the judgment is erro neous. Error to the Orphans' Court of Shelby. THE plaintiff in error filed his petition in the orphans' court of Shelby county, alledging, among other things, that he and the defendant became executors of one Mason, deceased. That at a sale of the effects of Mason's estate, one Ferrill purchased a portion of the same, and gave his note payable to the executors, with Shackleford, the defendant as security. The petition further avers that said plaintiff is a creditor of the said estate; that Ferrill is insolvent; that Shackleford refuses to account and pay said sum due from him. The plaintiff tendered an account, so far as his action as executor was concerned, and prayed the court, as a creditor, for final settlement of the estate. The petition was dismissed by the court, upon the ground that the judge of the court, who preceded the present judge, having been of counsel, an order was made transferring the cause to the circuit court of Shelby county. The dismissal of the petition is assigned as error. MORRIS, for the plaintiff in error. RICE, contra. CHILTON, J.-In Childress v. Childress, 3 Ala. R. 752, it is decided, that an executor who purchases the property King v. Shackleford. of the estate, is, after the expiration of the term of credit, chargeable with the amount due, as so much money in his hands. So also, in the final settlement of the accounts of an administrator, he is chargeable with a debt due from himself to the decedent, although he may have been insolvent when the administration was committed to him, and continues so. Purdom v. Tipton, et al. 9 Ala. Rep. 914. The principles settled by the above cases will charge the defendant in error with the amount of the note of Ferrill, for the payment of which he became bound as security. It is objected, however, that King being co-executor with Shackleford, is not authorized to proceed as a creditor under the statute, and have a final settlement of the estate, so as to obtain his distributive share. It is clear that he has no remedy by suit at law to collect the note. This point was settled in the case of Chandler v. Shahan, 7 Ala. Rep. 251. Upon a similar statement of the facts in a bill in chancery, this court has decided he has no relief in equity. See King v. Shackleford, 6 Ala. Rep. 423. If then he has no relief by the proceedings instituted, he is clearly without remedy. We think the statute embraces the case, and that King has a right to have final settlement enforced, as a creditor, and distribution decreed him. He proceeds as a creditor of the estate, not as executor, and as such creditor, he is entitled to share the funds in defendant's hands. There is no objection to the form of the petition brought to our notice. Allowing it to be in due form, the only remaining question is, did the court, for the reasons assigned, properly dismiss it, and repudiate the cause? There is no statute authorizing the orphans' court to transfer a cause for any purpose, to the circuit court; a mode entirely different is prescribed by the statute. Clay's Dig. 298, § 9; 305, § 46. The circuit court had no jurisdiction of the cause, and the order of the orphans' court, transferring it to that court, was a nullity. It is contended by defendant's counsel, however, that the order of transfer was not the only evidence before the orphans' court, and that as it is recited in the judgment entry, "that the court, for sufficient cause appearing to it," dismisses the petition, &c., we must, in order to maintain the |