Boon v. Barnes
23 Miss. 136
Miss.
1851
Check Treatment
Mr. Chief Justice Sharkey

delivered the opinion of the court.

The object of this bill is to enforce a vendor’s lien. The complainant’s intestate, Jno. B. Wood, in his lifetime had sold a tract of land to James Blackburn, and had made a bond for title. After Wood’s death, the probate court directed Boon the administrator to make title to Blackburn, according *138to the provision of the statute conferring such power on the court. Hutch. Code, 471, sec. 114. Boon made the title according to the order of the court, on the 18th of December, 1838.

In August, 1838, the complainant brought suit against Blackburn for the purchase-money, and in September of the same year recovered a judgment. Under the executions which emanated on this judgment and others, the sheriff sold the property in question on the 3d of February, 1840, and his son, J. H. Mabry, became the purchaser, to whom the sheriff, David Mabry, conveyed. Barnes claims the land by purchase from the sheriffs vendee, in payment of a judgment debt. He had filed a bill to subject this land to the payment of his judgment, and the matter was compromised, and the bill dismissed, and the judgment thus satisfied.

The first object of the bill is to have the conveyance made by order of the probate court set aside, on the ground that the court should not have made such an order until the purchase-money was paid. The obvious answer is, that the statute gives the court power to order the executor or administrator to make title agreeably to the bond, and the judgment was acquiesced in without objection. The party really performed the judgment by making the title, and has thus acknowledged its validity. The statute gives an appeal in such cases if a party be dissatisfied with the order of the court, but bo appeal was taken, or any complaint made, until after the lapse of six years. Under these circumstances we can see no ground for netting aside the conveyance. But considered in this aspect it is virtually a bill to rescind the contract, and the application is not only late, but it is made after the party has sued at law for the purchase-money, and after the land has been sold under an execution on his judgment, and has passed into the hands of a third person. The party has thus precluded himself by his own acts.

Then we are to consider whether the vendor’s lien can be enforced. That such a lien will be sustained in a proper case is the settled doctrine of this court, but that it will not be sustained against a honu fide purchaser without notice from the *139original vendee, is equally well settled. Clower v. Rawlings, 9 S. & M. 122; Bayley v. Greenleaf, 7 Wheat. 46. At the sheriff’s sale, J. H. Mabry became the purchaser of the property, and he sold it to Barnes. It is said that- Mabry was a fraudulent purchaser, and this is probably true, but there is no proof whatever that Barnes is a fraudulent purchaser, and he is protected by the bona fides of his purchaser, although his vendor may have acquired title in fraud. The lien then cannot be enforced against Barnes according to the doctrine of the cases cited. But the case of Dunlap v. Burnett, 5 S. & M. 702, is relied on as establishing a rule which would make the land liable in the hands of Barnes, but it does not apply. A distinction was then adverted to which would sustain the vendor’s lien as against a mortgage of the vendee, if the mortgage be taken merely to secure an antecedent debt, but otherwise if the mortgage be made to secure an original loan. Barnes is not a mortgagee, but an absolute purchaser. True, the consideration paid by him was an antecedent debt, but it does not appear whether it was antecedent to the sale by Wood to Blackburn. Barnes had filed a bill to subject the property, and that he relinquished; he also had a judgment, and the security afforded by that has been lost. He cannot be restored to his original position, but must be in a worse one. A mortgagee of the vendee,- whose mortgage was taken to secure a debt existing prior to the purchase by his mortgagor, is in no worse condition than when the debt was contracted, and that is the reason of the distinction. But this is not the case with Barnes.

But there is another view of this case which is entitled to great weight. The complainant did not rely upon a vendor’s lien ; he recovered a judgment, and thus acquired another lien, and this he enforced by a sale of the property. Can he now go back to his first lien, and thus enforce both 1 It is, to say the least, not by any means clear that he can do so. The doctrine laid down by Chancellor Kent, in Tice v. Annin, 2 J. Ch. Rep. 125, seems to be opposed 1o this course. True, ii is said the sheriff should not have sold under complainant’s execution ; but that he did so was the fault of the complainant. *140The fact that Barnes is a boná fide purchaser, however, we deem conclusive, and the decree must be affirmed.