36 Miss. 685 | Miss. | 1859
delivered the opinion of the court.
This bill was filed by the appellee, showing that he is the heir at law of James Toumbs, who died in April, 1855, seised of certain described lands, which descended to the appellee and his brother, who is since deceased; that in October, 1855, and when the appel-lee was an infant about eighteen years of age, he executed a deed of conveyance for a certain described part of said land to the appellant Cook, which was obtained by said Cook by persuasion and contrivance, and without any valuable consideration whatever, the sum of one hundred dollars, expressed in the deed as the consideration, being entirely nominal; that before the death of James Toumbs, a judgment at law was rendered against him, in favor of one Wheeler, for the sum of $107 45, and costs of suit, on which an execution issued in March, 1855, on which a small sum was made by the sale of personal property of the deceased; and in November, 1855, after his death, another execution was issued, tested of June term, 1855, and returnable to December term, 1855,
The appellants demurred to the bill, on various grounds, and the demurrer being overruled, they thereupon took this appeal.
The first ground of demurrer here insisted on is, that the remedy was plain and ample at law, to recover the land. But this position is not tenable under the circumstances of the case.
The allegations of the bill show a case of fraud in obtaining the deed of the appellee without legal consideration; that the deed is outstanding, and that Cook has conveyed the land to a third party. The object of the bill is to vacate and cancel this deed, not merely to recover the land; and this, it is plain, a court of law is incompetent to do. In addition to this, it appears that Chapman claims title under purchase from Cook; and there is no form of action at law, by which both of these parties could be sued in one action, and their interests divested. Their interests are connected together, and it is proper both to them and for the relief sought by the ap-pellee, that they should be proceeded against jointly, and a court of equity is plainly the proper forum in which to proceed.
2d. It is objected that the bill does not offer to restore the sum of one hundred dollars, the consideration stated in the deed to have been paid by Cook to the appellee.
The bill, however, alleges that neither this sum, nor any other consideration, was paid by the appellant, Cook, or received by the appellee, and that the statement of the consideration in the deed is not true. To this it is objected that the appellee is estopped by the recital in. his deed. The objection is without force. The party being an infant, the deed had no force or effect against him, unless ratified after attaining to majority; and he was no, more estopped by the consideration stated in it, than by anything else connected
3d. It is insisted that a court of equity has no jurisdiction to set aside a sheriff’s sale and deed under an execution against a deceased defendant, tested and issued after his death, and where the judgment has not been revived by scire facias.
It appears by the facts stated in the bill that Cook is chargeable with notice that the defendant in the execution was dead, and that the judgment had not been revived. He must have had notice of the former fact, for he had, previously to the sheriff’s sale, taken the deed from the appellee as owner of the land, which he could scarcely have done unless his father was dead 5 and he was hound to take notice of the latter fact, because the execution under which he purchased showed It. Though a stranger to the execution, he was yet a purchaser with notice, in law, of the regularity of the execution, and of course he is not entitled to protection as a purchaser under a valid and regular execution. But it is said that the sale and deed of the sheriff, can only be set aside by the court from which tire execution issued.
It has been repeatedly held by this court, that such sale may he set aside by a direct proceeding, instituted by the heir for that purpose. Smith et al. v. Winston et al. 2 How. 601; Shelton v. Hamilton, 23 Miss. 496; Hodge v. Mitchell, 27 Ib. 560. This right, of course, can he exercised by the infant heir after he reaches his majority. But at that time the jurisdiction of the court from which the execution issued might have transpired, and the exercise of it might be doubtful for that reason, or by reason of the objections to the validity of the sale being of an equitable nature, which might not justify a court of law in setting aside the sale. But these difficulties do not exist in a proceeding instituted in a court of equity for setting aside the -sale. In such a proceeding, the complainant sets forth the irregularity of the execution, his own minority, and prays that, for the reasons stated, the sale be set aside. No objection can he perceived to this mode of proceeding in equity against a purchaser who has purchased the land at sheriff’s sale, with notice of their regularity of the execution, against the rights of the infant; and this ground of demurrer is not maintainable.
It is true that if Cook was a purchaser in good faith at the execution sale, and paid the money in discharge of the judgment, he would be entitled to reimbursement before the relief sought by the bill would he granted. But this is rather a matter of defence, than a part of the complainant’s case; and it would be entirely competent for the court, under the bill as now framed, to decree that the deed of the sheriff to Cook be set aside and delivered up to be can-celled, upon the appellant paying to him the sum of money paid by him in discharge of the judgment. Such a course is not inconsistent with the scope and prayer of the bill, and the court, in granting the relief sought, is competent to do so upon such equitable terms as may be shown to be just and proper.
Let the decree be affirmed, and the cause remanded, with directions that the appellants answer within sixty days.
