[McCoy v. Watson.] or a request for instructions, will prevent it from operating prejudicially to the party against whom it is given. After the introduction of the deeds, the plaintiff gave evidence that Washburn, who conveyed to Williams, the grantor of the plaintiff, had possession of the premises conveyed, prior to the execution of the deed; that after Williams's conveyance he had taken possession, and occupied by his tenants, and paid taxes, until the entry of the defendant. If the deeds were irrelevant when offered, this evidence rendered them relevant. They became evidence of the plaintiff's title. The rule is, that if evidence, prima facie irrelevant, becomes relevant at any stage of the cause, its admission is not an error which will work a reversal, although when offered and received it was irrelevant. 1 Brick. Dig. 780, § 106. 3. The remaining exceptions depend on the determination of a single question: Was the appellant in a condition to impeach the title on which the plaintiff relied, because it was fraudulent as to the creditors of J. L. Burson. The defendant was a purchaser at sheriff's sale, and succeeded to the rights of the plaintiff in the judgment, under which he purchased. If the plaintiff in that judgment could have assailed the title of the plaintiff, as having been made to hinder, delay, and defraud the creditors of Burson, the defendant has the same right. Carter v. Castleberry, 5 Ala. 277; Daniel v. Sorrells, 9 Ala. 436; De Vendell v. Hamilton, 27 Ala. 156. 4. It is not a general creditor, but a creditor with a lien, created by judgment and execution, who can, in a court of law, impeach for fraud conveyances made by his debtor. Pennington v. Woodall, 17 Ala. 785. To support a purchase of real estate under execution, at sheriff's sale, a judgment and execution, authorizing a levy and sale, are indispensable. These constitute the authority of the sheriff, and without them the sale is void. Lewis v. Goguette, 3 Stew. & Port. 184. 5. The judgment and execution offered in evidence were against J. L. Burson & Co., a partnership, in its firm or common name. The deed of the sheriff to the appellant recites the levy of the execution on the lands in controversy, as the property of Burson, not as the property of the partnership, and purports to convey only the claim and interest of Burson. All the evidence offered by the defendant, and rejected by the court, tended only to show that Burson had purchased the lands, paid for them, and caused title to be made to the plaintiff, with the intent to hinder, delay, and defraud his creditors. The evidence was inadmissible. The judgment and execution operated a lien only on the partnership property of Burson & Co., not on the separate property of the several partners. The statute authorizes the institution and prosecution of suits against a partnership [Hibbard v. Brown.] by its firm name, but declares the judgment shall bind only the joint or partnership property. R. C. § 2538. Such a judgment does not authorize the levy and sale of the separate property of any or either of the individual partners. It spends its force on the partnership or joint property. Wyman, Moses, & Co. v. Stewart, 42 Ala. 163. Consequently, the defendant could not assail the title of the plaintiff, as a fraud on the creditors of Burson. If it was a fraud, it did not injure him, or the judgment creditor, to whose rights he had succeeded. If the title had stood in Burson, unclouded by the conveyance to the plaintiff, the judgment creditor was not in a condition to seize it under execution. He could obtain no execution on his judgment, which would operate on it. The mandate of the only execution he could obtain, would not embrace it: it would extend only to the goods and chattels, lands and tenements of the partnership. The defendant not being in a condition to question plaintiff's title as a fraud on the creditors of Burson, there is no error in the charges given or refused by the circuit court, which could have worked injury to him, and it is unnecessary to consider The judgment is affirmed. them. Hibbard v. Brown. Statutory Real Action in Nature of Ejectment. Title of purchaser at tax sale. The tax-collector's certificate to the purchaser of lands sold for unpaid taxes, given under the 72d section of the revenue law of 1868, does not convey such title as will enable the purchaser to maintain ejectment, within two years after the sale, against the owner remaining in possession. APPEAL from the Circuit Court of Monroe. Tried before the Hon. P. O. HARPER. This action was brought by Sallie V. B. Hibbard against R. B. Brown, to recover the possession of a tract of land, which was in the possession of the defendant, together with damages for its detention; and was commenced on the 30th August, 1873. The defendant pleaded, " in short by consent, 1st, the general issue; and, 2d, that since the commencement of this suit, and within two years from the sale by the tax-collector, he had redeemed the lands sued for." Issue was joined on the first plea, and the alleged redemption was admitted on the trial, as the bill of exceptions states. The only evidence of title adduced by the plaintiff, as appears from the bill of exceptions, was a certificate of purchase from the tax-collector of the county; which was in proper form, was dated the 5th day of May, 1873, and recited the sale of the lands on that day, as [Hibbard v. Brown.] the property of the defendant, for the unpaid taxes assessed on them for the year 1872. The plaintiff also proved that the lands had been regularly assessed, and that the sale had been legally advertised, and all the other preliminary requirements of the law had been complied with. The court charged the jury, in effect, that the plaintiff was not entitled to recover; and this charge, to which the plaintiff excepted, is now assigned as error. J. W. POSEY, for appellant. S. J. CUMMING, contra. B. F. SAFFOLD, J.-Does the certificate of purchase of real property, which the tax-collector is required to give, under section seventy-two of the revenue act of 1868, vest such title in the purchaser as will support ejectment brought by him, against the owner in possession, within two years from the date of the tax sale? Section seventy-three of the act makes the certificate assignable by indorsement simply, with the effect of transferring to the assignee all the right and title of the original purchaser. Such a mode of conveying the title of land is not recognized by our law, either in judicial sales, or by the contract of the parties. R. C. §§ 1535, 1536, requires the conveyance to be attested by at least one witness, or acknowledged before a competent officer; and section 1589, in respect to mortgages, clothes the assignee or transferree of the money secured with the right of the mortgagee, only so far as to execute a power of sale, if such is given. Graham & Rogers v. Newman, 21 Ala. 497, decides that there must be a deed from the mortgagee to the assignee of the mortgaged premises, with suitable words to convey the property itself. The revenue act of 1868 did not intend to alter the general law of the conveyance of real property. Its eighty-seventh section declares, that it is the deed of the probate judge, which "shall vest in the purchaser all the right, title, interest, and estate of the former owner, in and to the land conveyed." This deed is not to be made, until the usual time for redemption has elapsed, and it is to be acknowledged as other deeds of land. The eightieth section, authorizing redemption, requires no more of the owner than, within two years from the date of the sale, to deposit with the probate judge double the amount of the purchase-money, with ten per cent. per annum interest, the cost of the certificate of purchase, all subsequent taxes, and one dollar. The eighty-fourth section, which denies possession to the redeeming owner, until he pays to the pur [Jones v. Nelson's Executrix.] chaser the value of improvements made by him, has its appli- Jones v. Nelson's Executrix. Action on Promissory Note, by Payee against Makers. 1. Defective service of process. A defective or irregular service of process may be set aside on motion, but is not good matter for a plea in abatement. 2. Amendment of summons and complaint, by striking out name of one defendant. In an action on a promissory note, against several defendants, one of whom is improperly joined, the summons and complaint may be amended by striking out his name. Rev. Code, § 2809. 3. Computation of time under statute of limitations. — An action, commenced on the 17th October, 1870, founded on a promissory note due on the 9th April, 1860, is not barred by the statute of limitations of six years (Rev. Code, § 2901), since the period of time which elapsed between the 11th January, 1861, and the 21st September, 1865, must be deducted. APPEAL from the Circuit Court of Hale. Tried before the Hon. M. J. SAFFOLD. This action was brought by A. S. Nelson, "guardian" (and, on his death pending the suit, was revived in the name of his executrix), against Allen C. Jones, John R. Moore, and Rittenhouse Moore; was commenced on the 17th October, 1870; and was founded on a promissory note for $1,500, dated the 9th April, 1859, payable twelve months after date, to said "A. S. Nelson, guardian," with interest from date, and signed by said A. C. Jones, John R. Moore, and Sydenham Moore, deceased. In the summons, Rittenhouse Moore was sued as the administrator of said Sydenham Moore; but the complaint was against him individually. The copy of the summons which was served on the defendant Jones, was without date or signature; and he filed a plea in abatement on account of this defective service, to which the court sustained a demurrer. then pleaded the statute of limitations of six years, on which plea issue was joined. A plea in abatement was also filed by said Rittenhouse Moore, on account of a misjoinder of parties as to himself; and the plaintiff, by leave of the court, then amended the summons and complaint, by striking out the name of said Rittenhouse Moore as a defendant. The defendant Jones insisted, as the bill of exceptions states, that striking out the name of one of the defendants, who had been served with process, was a discontinuance of the action as to the other He 51 471 110 618 [Jones v. Nelson's Executrix.] defendants, and he moved the court to render judgment to that effect; which motion the court overruled and refused, and said Jones excepted. The court charged the jury, at the request of the plaintiff, that the action was not barred by the statute of limitations of six years; and to this charge, also, an exception was reserved by the defendant Jones. These several rulings of the court are now assigned as error. SMITH & ROULHAC, for appellant. WALLER, PITTMAN, & WALLER, contra. BRICKELL, J. Generally, a plea in abatement of process must give the plaintiff a better writ. It points out defects, which, if sufficient to quash, can be avoided on suing out new process. The defect must be apparent on the face of the writ, if the matter of the plea is not a misnomer. Here, no defect in the summons or complaint, which the plea prays may be quashed, is alleged. It is not denied that these are sufficient in form and substance. The irregularity complained of is, not serving the defendant pleading with a correct copy of these. If the plea had been sustained, better process would not have been given the plaintiff. New process, in the same form, could have been sued out, and its sufficiency would have been indisputable. Hence, a defective or irregular service of process is not matter in abatement, but is ground of motion to set aside the service. Maverick v. Duffee, 1 Ala. 433. Such motion is addressed to the sound discretion of the court, and it will always be exercised, so as to prevent an injury to the defendant. If it was matter of plea in abatement, serious injury would often result to the plaintiff, who, in framing and suing out his process, conformed to the law. The process would be quashed, because of the errors of the ministerial officers of the court, and he would be driven to a new suit; and in the mean time the statute of limitations might have perfected a bar. The only injury to the defendant was an irregular service, capable of correction by a regular service; while that to the plaintiff is of a graver character, and irreparable. The court did not err in sustaining the demurrer to the plea in abatement. 2. Nor did the court err in permitting the plaintiff to amend the complaint, by striking out the name of the defendant Rittenhouse Moore. He was not sued in a representative capacity, as the administrator of Sydenham Moore (a maker of the note, averred in the complaint to have died), but individually. He was not a maker of the note, and was, therefore, improperly joined as a defendant. The statute authorizes the striking out or adding of parties, plaintiff or defendant; and |