96 So. 744 | Miss. | 1923
delivered the opinion of the court.
At the April term, 1914, of the chancery court of Wayne county, the appellant procured a decree or judgment against the appellees and the sale of certain property thereunder upon which the appellant had reserved title to secure the payment of certain notes referred to in the bill in that case. The decree established the amount of the debt and directed the sale of the property therein secured, appointing a commissioner to make said sale and to report to the court his actions therein. The commissioner appointed gave notice, as required by the decree, that on June 13, 1914, during le^al hours he would make sale of the property described in the decree, and on June 13th made the sale and reported the same to the court, which
The bill of complaint in the present case was filed for the purpose of renewing the said judgment of September 23, 1914, being filed on August 6, 1921, and alleging that the said amount as adjudged on September 23, 1914, was still due and unpaid, and would become barred by limitation unless renewed on or before September 23, 1921, and prayed for a decree renewing and keeping alive said decree for another seven years so that complainant may collect its just demand against the defendants. The bill in the present case set forth the decrees in the former proceeding as exhibits to the bill.
The defendants answered the last bill filed and admitted the rendition of the decree, but allege that the judgment was in force and effect on the 15th of April, 1914, and on the 15th day of April, 1921, became void because of the statute of limitation, section 3103, Code of 1906 (Hemingway’s Code, section 2467), which statute of limitation they plead. They further set forth by way of cross-bill that on June 27, 1921, the complainant had the chancery clerk of the county to issue execution on the decree of September 23, 1914, but without any notice to the cross-complainant, and aver that the statute of limitation began to run on the original decree April 14, 1914, and not from the date of the decree over rendered on September
Complainants answered the cross-bill and deny that the statute of limitations pleaded by the defendants ran against the said judgment. Cross-defendants further admit that on June 27th the chancery clerk of Wayne county issued an execution on the decree rendered on September 23, 1914, but deny that the said decree is void, but that it is valid and binding under section 643, Code of 1906 (Hemingway’s Code, section 405). They admit that the sheriff sold said lands by virtue of the execution and that the Continental Gin Company became the best bidder therefor at the sum of one thousand dollars and received a sheriff’s deed for the same, and that the said deed is not of record; deny that the sale made by the sheriff is void, or that it is a cloud upon the title of the defendants.
The court decreed that the original judgment had become barred on April 15, 1921, and that the bill to revive had not been filed until August 6, 1921; that the statute of limitation had barred the judgment, and the bill should be dismissed; that the execution issued thereon on June 27, 1921, and sale* thereunder was void because it was based upon a judgment which had expired by operation of law; and further adjudged that the defendants and cross-complainants were entitled to the relief prayed for in the cross-bill, and that said deed be canceled and held for naught. -
. The question for decision is whether or not the decree of September 23,1914, was a new judgment for the amount of the debt unpaid by the sale of the machinery.
“Upon the confirmation of the report of sale of any property, real or personal, under a decree for sale to satisfy a mortgage, deed of trust, or other lien on such property, if there be a balance due to the complainant the court, upon motion, shall give a decree against the defendant for any such balance for which by the record of the case he may be personally liable, upon which decree execution may issue.”
This section expressly gives the chancery court authority to render a decree against the defendant for any such balance as the defendants may be personally liable for, and, we think, constituted a judgment against the defendants running from that date, and that consequently said judgment had not become barred by the statute of limitation on the filing of the bill on August 6, 1921. It was held in Weir v. Field, 67 Miss. 292, 7 So. 355, that the right to move for a renewal of the judgment in the chancery court may be exercised, at any time before the decree becomes barred; that notice to the defendant is unnecessary if a motion be made at the time of the confirmation of the sale directed in the first order, but if made at a subsequent term such notice is necessary, although the original bill and motion filed on the day of the confirmation of the sale prayed for adjudgment over for the balance due after applying the proceeds of the sale, and the decree of the court confirming the sale applied the proceeds of the sale to the payment of the costs, and on the judgment originally rendered and decreed for the complainant the amount of balance due after making such payment.
In the absence of the statute above-set out, the complainant could immediately have filed suit in the circuit court upon the judgment unsatisfied by the sale, and would have been entitled to judgment therefor. The statute was intended to give the complainant the right to do this in the chancery court and to give to the decree of the chancery court the full effect of a judgment at law.
Reversed and remanded.
