E. E. Forbes Piano Co. v. Hennington, 53 So. 777

53 So. 777 | Miss. | 1910

Mayes, C. J.,

delivered the opinion of the court.

In-this complicated record there are some controlling facts which admit of no dispute. It is clear that Williams and his wife, being the owners of the piano m question, executed a valid bill of sale to same to the Forbes Piano Company either on the 23d day of October, 1907, or about the 17th day of January, 1908. In the decision of this case it is not necessary to determine which date is correct, or to undertake to reconcile the conflicting testimony on this point. When the Williamses executed this bill of sale, it conveyed all right, title, and interest which they had in the piano to the Forbes Piano Company, and that company became the owner of same, subject to all prior equities in favor of third parties arising before the conveyance was made. Lamar Hennington was the justice of the peace in whose court Mrs. Williams was sued- for a grocery bill, resulting in a judgment of some sixty-odd dollars. This judgment was rendered some time about the 26th of October, 1907, and was never enrolled, and therefore never became a lien on the property until an execution was issued thereunder and levied on the property. Subsequent to the rendition of the judgment an execution was issued on the judgment, issuing from the office of Lamar Hennington, and levied on this piano, and the piano sold under this execution, at which sale Hennington himself, the justice of the peace who rendered the judgment became the purchaser thereof.

Under section 3959 of the Code of 1906, this execution must be returned to the court rendering the judgment, and it is in that court that all motions must be made to quash or vacate it. This being the case, if a justice of the peace is allowed to purchase at an execution sale under one of his own judgments, he may be called to sit in review upon the validity of a sale in which he is interested as purchaser and called upon to preside as judge. This, of course, is repugnant to our laws. It is contended on behalf of appellee that the laws which prohibit a judge from purchasing- apply only to judicial sales, and that a sale made under a judgment of a justice of the peace is not a judicial sale within the meaning of the law. There -is some authority to this effect; but the cases which hold that a sale made under the judgment of a justice of the peace is not a judicial sale so hold on a construction of their particular statute, and have no application to this case. In 16 Neb. 407, 20 N. W. 277, in the case of Neligh v. Keen, the court held that a judicial sale applied to sales under execution, as well as any other order, and in the case of Seymour v. National Building & Loan Association, 116 Ga. 285, 42 S. E. 518, 94 Am. St. Rep. 131, the same is held. Although a lien was established when the execution was levied, the lien falls with the execution. A valid sale was not made under the execution, a,nd the execution was void after the time for its return had passed without valid action thereunder. It may be that the piano is subject to a vendi. exponas; but we are bound to reverse this case in its present attitude.

'Reversed and remanded.

Suggestion of error filed and overruled by the court without further opinion.