27 Miss. 751 | Miss. | 1854
delivered the opinion of the court.
This was a bill filed in the vice chancery court at Fulton, by the appellees, to set aside the sale of a judgment obtained by them against the appellant in the circuit court of Monroe county, in the year 1838, and which was ordered by that court to be sold for the payment of costs, in virtue of the act of 24th of February, 1844, and was purchased by the appellant.
The grounds of relief set up in the bill are, that at and before the time of the sale, the appellant owned property and effects, and had the means under his control amply sufficient to pay the costs and the amount then due on the judgment, but that he fraudulently concealed and withheld those means from the sheriff, and thereby caused several executions in the judgment to be returned nulla bona; and further, that when the judgment was sold, the appellant interfered and induced other persons not to bid for the judgment at the sale, and in consequence thereof, that he became the purchaser of it for the . sum of ten dollars, the judgment being for $2,025.33, with interest from October, 1838, all of which was due except the sum of $2,100, which had been paid upon it.
The answer denies both these charges, and insists that he
The proof shows clearly, that when the sale of the judgment was about to be made, a third party, against whom the appellant had a judgment, intended to bid for it, and that the appellant induced him not to bid, by agreeing that if ■ he would not bid, the appellant would enter satisfaction of the judgment which he held. This agreement was carried out, and the appellant became the purchaser of the judgment, and without this arrangement, the other person would have bid for the judgment.
The proof also shows that the appellant had, at the time of the purchase, and between that time and the date of the judgment, property and effects sufficient to pay the amount of the balance of the judgment, some of which was in his possession openly, and other portions of it were not in a situation to be taken in execution.
On the final hearing, a decree was made setting aside the purchase of the appellant, and awarding execution upon the judgment to the appellees; from which decree this appeal is taken.
The provisions of the statute under which the appellant became the purchaser of the judgment in question, are certainly harsh and oppressive upon the rights of non-resident plaintiffs, whose rights are divested without notice; and this is especially the case, where the defendant in the judgment has become the purchaser, and thereby discharged a large debt by paying but a small part of it. It is a question for grave consideration whether the statute warrants a sale without notice to a non-resident creditor, and whether the legislature had the power to give to the defendant in a judgment the right to purchase it without the plaintiff’s consent, for a less amount than is due upon it, and thereby destroy the plaintiff’s right of complete satisfaction. But these points, though they may arise upon the record in this case, are not presented by counsel for decision; and we therefore give no opinion upon them on the present occasion.
The rigorous operation of the statute upon the rights of nonresident creditors, demands that, a defendant in a judgment,
In this case, it appears that the conduct of the appellant will not bear the test of these just principles. It is positively shown that he interfered to prevent bidding when the judgment was offered for sale, and that he gave an equivalent to induce a party intending to bid, not to do so. This tended directly to the injury of the plaintiff, who was entitled at least to a fair public sale, and free competition in bidding; for he was entitled to all the surplus of the proceeds of the sale after payment of the costs. But by the unconscientious interference of the appellant, the plaintiff was prevented from deriving any thing from the sale of his judgment, and it was sacrificed at a sum largely below what it was really worth.
It appears by the evidence, that the appellant had ample means to pay the balance due on the judgment, if he had been disposed to apply them to that purpose. The plaintiff was justly entitled to such an application, and it was the duty of the appellant not to withhold it; for it is the duty of every man, having the means, to pay his debts. Instead of doing this, by improper means he caused the plaintiff’s judgment to be sacrificed ; and if the sale were permitted to stand, he has really paid off his debt with about one hundredth part of the sum due upon it. Such a result could never be tolerated, unless where there can be no question of the entire good faith of the party.
Upon the merits of the case we are, therefore, of opinion that the decree is correct.
But it is insisted in behalf of the appellant, that the relief sought is barred by the 8th section of the statute of limitations of 1844. The relief sought is, that the sale be set aside, and the plaintiff have execution of the judgment. The statute referred to does not bar the right to issue execution upon a judgment, until the lapse of sevén years from the time the last exe
The bill in this case was filed in 1849, and, consequently, the limitation prescribed had not then expired. The rights of the appellees to have their execution must have reference to that date, because the exercise of these rights was prevented by the conduct of the appellant.
The decree is affirmed with costs.
