46 Miss. 669 | Miss. | 1872
Thomas Christian bought the premises in controversy at sheriff’s sale, under a judgment recovered against E. H.
It seems to be conceded that, if O’Neal’ s suit was brought in time, i. e., six months after the money was due, then he has the superior lien, although his judgment is junior to that of Walter and Fisher. “ Such suit shall be com-
The certificate of the clerk, and his deposition, prove that there was no suit of O’Neal v. Davis, No. 11,290, on the docket at the April term, 1861. The summons purporting to have been issued 16th April, 1861, was not returned to the clerk, nor was there a suit to which it corresponded then on the. dockets of the court; it was filled up and the number put on it in the handwriting of O’Neal’s attorney. The last suit on the docket at April term, 1861, was 11,280. It does not appear that the writ was ever sent to or placed in the hands of the sheriff, or that any efforts were ever made to have this or any other writ served on Davis. If a petition was not on file, when this, or the writ of June, 1861, was issued, suit was not begun. In 1866, O’Neal obtained consent to substitute papers, for those which had been mislaid or lost, and thereupon presented a petition, which was filed as of April term, 1861. About the same time, Davis signed an acknowledgment and indorsed on the writ, that he had been served with summons in 1861, that he waived formalities, and consented to a judgment by default. These proceedings might be conclusive upon Davis, but they cannot be improvised and introduced into the record, unless true in fact, so as to affect liens and rights acquired by third persons. It is legitimate and admissible to attack judicial proceedings for fraud. Parol evidence may be received, to establish any fact, or series of facts, tending to show that
It is alleged by the complainant that O’Neal did not commence his suit by petition in 1861. If not so began, his lien has been abandoned and lost. The theory of the complainant is, that the leave obtained, in 1866, to substitute papers for those lost, is a mere device and pretext to preserve and perpetuate an expired lien. He asserts that there never was an original petition on file. If the fact be so, as against his rights acquired under the judgment of Walter & Fisher, no consent or agreement by Davis, that the lien may be set up, will defeat his title. If that fact be proved by parol, or by production of the record and parol together, it is a pregnant fact, tending to show the fraud complained of. We think this fact has been satisfactorily established. It was not in the power of the court, by permitting the petition to be filed as of the April term, 1861, so as to give it effect as of that term, under any rule of amendments. If there never had been an original there could be no substitution. Amendments may be made of mistakes of the clerk, or of the pleadings, but treating this petition, as introduced, as an amendment, it was wholly irregular and unwarranted. Russell v. McDougall, 3 Smedes & Marsh. 234; Boon v. Boon, 8 ib. 318. The proceedings had in O’Neal’s suit, in 1866, were by consent and agreement between himself and Davis, in so far as third persons who had acquired interests in the property were concerned. The mechanic’s lien, if there was one, of O’Neal, stood purely and exclusively upon its statutory basis. It was conferred by statute, and had such virtue and extent as the statute gave it. After it arose, upon the contract to erect the house, it could not be enlarged, extended or revised, by agreement and contract, to the prejudice of other persons acquiring liens or interests in the property. As between themselves, the parties could modify the contract as they pleased, but not so as to affect the rights of others. Brown v. Moore, 26 Ill. 425.
The objection taken to Christian’s capacity to purchase is unfounded. He sustained no confidential relation to either creditor or debtor, to the judgment under which he bought, nor was he legal adviser to either Davis or O’Neal in their suits. He stood, therefore, as indifferent to all the parties as any other person in the community; and his right to purchase at judicial sales as broad as others, unless he bore a fiduciary, professional relation, which would or might give Mm an advantage over one or another party. Where such relation exists, a purchase may be voidable, at the suit
It is argued that Christian is not the “true owner; ” did not acquire the title, because the judgment under which he purchased was void. 1st. Exception is taken to the service of the writ on Davis ; the return of the officer is “executed, in person, on Davis.” While this is an irregular service (Strickland v. Milam, 45 Miss. 721), and for that reason avoidable upon writ of error, it is not void, but good for all purposes until set aside or corrected on error. Harrington v. Wofford, supra, p. 31; 41 Miss. 563. This service shows that Davis had notice of the suit, and was sufficient to sustain the judgment. Execution of an erroneous judgment by sale of property is valid, and transfers the title to a purchaser; a subsequent reversal of the judgment does not divest the title. Harrington v. Wofford, supra, and cases cited; 25 Miss. 451.
A second objection is, that the suit ought to have been brought in Noxubee county, where Davis resided, instead of Lowndes. If Davis was a freeholder and resident of Noxubee, he might, upon motion, have procured the transfer of the suit to Noxubee county; if such application were not made, the circuit court of Lowndes county could, properly, entertain jurisdiction and give judgment. Code, 1857, art. 32, p. 483.
Nor was it error to dismiss the suit, as to the other defendant, and take judgment against Davis. Pool v. Hill et ux., 44 Miss. 306.
Wherefore, the decree of the chancellor is reversed and cause remanded.