45 Miss. 694 | Miss. | 1871
Both parties derive title .to the locus in quo from the same source. The controversy is, which has the better? The plaintiff in error purchased at a sheriff’s sale under a. judgment recovered by him against E. H. Flaherty. The defendant in error claims title by purchase from E. H. Flaherty, 10th December, 1859.
The judgment under which the land was sold was recovered 10th October, 1860. The sale was made by the sheriff the 8th April, 1867, for the sum of $50.
The defendant purchased the premises on the. 10th December, 1859, on the consideration of one-half cash ($300), and the balance to be paid ($300) December 25, 1861; the deed to be made when the deferred payment was made. The testimony of the vendor is, that shortly after the sale possession was delivered, he moving off to another place about eight miles distant. The vendee testifies, that he was let immediately into possession and has ever since occupied it. That he caused the deferred payment to be made to the sheriff for the plaintiff on his debt, the judgment against his father, the vendor; and that, at the date of his purchase, he had no knowledge of this indebtedness of his father to him.
The plaintiff read, in evidence to the jury, the-deed from E. H. Flaherty to the defendant, dated 7th March, 1861, and the judgment under which he purchased the lands. The verdict was for the defendant; the case is brought into
The plaintiff objected to the reading of the title bond of E. H. Flaherty to the defendant, because it opposed no title which could defeat a recovery.
This bond is elder in date, by about ten months, to the judgment under which the plaintiff derives title ; but it is urged for the plaintiff that it was not acknowledged and recorded, and therefore gave no notice to him, nor had he actual notice before the recovery of his judgment.
The rule specifically stated in Walton v. Hargroves, 42 Miss. 26, is to the effect, that a general judgment lien confers a right to levy on property to the exclusion of adverse interests subsequent to the judgment. The lien is subject to all the equities which exist at the time in favor of third persons. A court of chancery will limit the lien to the actual interest of the judgment debtor in the property. The “actual’’ interest of the judgment debtor in this case was a right to the unpaid purchase-money, as security for which he retained the legal title. The purchaser under the judg ment would be substituted to the place and privileges of the debtor. If he bought while the vendor and vendee bore the relations and the relative duties and obligations imposed by the title bond, he would have acquired the legal title, incumbered as it was with a trust in favor of the vendee, that it should be conveyed to him in payment of the balance of the purchase-money. The vendee (the defendant) in that case would have compelled a surrender of the legal title to him, on payment of the balance of his debt. But the defendant acquired the legal title in March, 1861, several years before the sale under the judgment.
At no time could a sale under the judgment have defeated the equitable title of William M. Flaherty (if that transaction was bona fide); it could only have conferred a right to hold the land until the balance of the debt, for it was paid
The testimony entirely fails to impeach the transaction between E. H. Flaherty and W. M. Flaherty as fraudulent, as to the creditors of the former. The only evidence tending to establish fraud is the existence of the debt, subsequently merged into judgment, but the purchaser was ignorant of the debt and suit. Nor was it necessary to acknowledge and record the title bond. As between the parties registration imparted no additional force. Subsequent purchasers and creditors, with notice, are bound by it. Possession by the vendee is notice of his title.
Judgment affirmed.