Harper v. Hill

| Miss. | Apr 15, 1858

Smith, C. J.,

delivered the opinion of the court.

This was a bill filed in the Superior Court of Chancery. The object of the suit was to restrain process at law; to set aside a sale of certain real estate made by the sheriff of Hinds county; and to have the deeds made to the purchaser declared void, and delivered up for cancellation.

The facts alleged in the bill are substantially as follow: A judgment, on a forfeited forthcoming bond, was entered against John Shields and others, at the November Term, 1837, of the Circuit Court of Hinds county; upon which, on the 13th of February, 1838, execution issued, and ivas levied on certain slaves, the property of the principal in the bond. The slaves thus levied on were sold at public auction by the sheriff, and brought the sum of $2530. Ho application of this sum was made by the sheriff in satisfaction of the execution, but held by him “subject to an order of court.” No order was made by the court appropriating the money to the payment of any other judgment or execution; and hence it was charged, that the execution in question was satisfied.

At the instance of the defendant, Harper, several executions in succession were issued upon said judgment thus alleged to be satisfied. The last of these executions was issued on the 12th of January, 1844; and, on the same day, was levied upon certain lots, described as lots one, two, seven, and eight, in the city of Jackson, the property of the said Shields. These lots were sold, under the execution, on the 19th of February, 1844, and were bid off by defendant, to whom a deed for the same was executed by the sheriff.

Shields died, in 1889, seised and possessed, in fee simple, of the said property; leaving the complainant, Mrs. Shields, his widow, and the complainant, Mrs. Hill, his daughter and only heir-at-law. The judgment, upon which the execution issued under which the sale was made, was never revived against these complainants, who at the date of the sale had no notice whatever of its existence.

The defendant commenced an action of ejectment in the Hinds Circuit Court against the complainant, Moody, “ who was in possession of the said lots under what he supposed to bo a good title,” and at the March Term of said court recovered "a judgment against said complainant, and threatened to sue out a habere facias possessionem, in order to turn him out of possession.

The complainants, Mrs. Shields and Mrs. Hill, since the rendition of the judgment in the ejectment suit against said Moody, have placed him in possession of the said lots, and “ have authorized him to defend the possession thereof conjointly with them under their title as heirs-at-law of said Shields.”

The bill charges that the sale of the said lots was fraudulent and void, and conveyed no title as against the complainants; and prays for an injunction to restrain the issuing of a writ of possession upon the judgment at law; that the said sale be set aside, and that the sheriffs deed for the lots, to the defendant, be delivered up to he cancelled. •

A demurrer for want of equity in the bill was filed by the defendant, which was overruled and an appeal taken to this court. Our inquii’ies, therefore, are limited to the question, whether, upon the case made in the bill, the appellees are entitled to relief.

The appellant, in an action of ejectment, recovered a judgment against the complainant, Moody, for the lots in controversy. Moody, according to the statements of the bill, was in possession, when the recovery was had, under a title which he supposed to be a good one. The title, therefore, under which he held possession, and upon which, we may presume, he defended in the suit at law, was adverse, not only to the title of the appellant, but also to that which Mrs. Shields and Mrs. Hill now assert. If the sale of the lots was void for the causes assigned, and therefore, as it is alleged, ineffectual to pass the title, it is manifest that the paramount title was vested in these parties. For this reason, it is clear, that they had'it completely in their power to recover possession by ejectment against Moody, or against the appellant, in case the former was turned out, and the latter let into possession. The title of these parties was in no respect involved, and therefore, could in nowise be affected by the recovery in the ejectment suit. They were not, and do not claim to have been, in possession when the recovery was had. And, having no interest in that controversy, it does not admit of question, that, at their solicitation, a court of equity has no authority to interpose between the parties thereto, for any purpose whatever.

In reference to the complainant Moody, there is not even a pre-tence, based upon his own title, that he has a right to the equitable assistance or protection of the court. In fact, he sots up no title, either legal or equitable, in himself. Most clearly, therefore, the mere fact that he was placed in possession by his co-complainants, after the judgment at law, did not confer upon him, individually, or upon all the complainants jointly, a right to claim the intervention of a court of equity, in order to restrain the execution at law. If the transaction were the reverse of that which is alleged; if the bill showed that Moody had delivered the possession to his co-complainants, instead of having received possession from them, some color, upon the allegation that they were the owners of the paramount equitable title, might be given to the pretension set up by the bill, that they are entitled to be protected in such possession, until a final adjudication, upon the merits of the claim, were had. As the case is presented, hoivever, it is evident that the introduction of Moody as a party complainant, has in no respect strengthened their claim to any relief whatever. Indeed, so far as Moody is concerned, and so far as the bill seeks to restrain the execution at law, the transaction amounts to nothing more than an effort, on his part, by setting up the outstanding title of his co-complainants, to defeat the recovery against him, and thus to be continued in the possession, without the assertion of any title thereto, either legal or equitable, in himself.

If we are correct in these views, it follows, necessarily, that'a court of equity could not, rightfully, interpose between the appellant and Moody, for the purpose of restraining the process in the action of ejectment.

We will next examine the main question raised by the demurrer: that is, whether, upon the case made by the bill, the appellees are entitled to a decree vacating the sale and annulling the sheriff’s deed to the appellant ?

In support of the decree, it is contended that the sheriff’s sale was illegal and void, and consequently that his deed to the purchaser was a nullity: 1. Because the execution, under which the sale was made, was issued upon a satisfied judgment; and, 2. Because Shields, the owner of the property, was dead when the execution issued. The judgment never having been revived against the heirs and terre tenants.

1. In reference to the satisfaction of the judgment, the statements of the bill are, that the execution which issued upon it, in 1888, was levied upon certain slaves, the property of the principal in the forthcoming bond, which were sold in virtue of said execution; that the proceeds of the sale were not applied by the sheriff to the payment of the same, but were held subject to an order of the court; and that no order was ever made appropriating the proceeds of said sale to “the payment of any other judgment or execution.” Upon this ground, and for this reason, it is charged that the “ said execution was paid and satisfied.”

But by reference to the transcript of the record in that case, which was referred to in the bill, and made a part of it, it appears distinctly that the proceeds of the sale, under the execution in question, were not applied to the satisfaction of the same, but that they were appropriated, by order of court, to the satisfaction of other executions. This statement, contained in the exhibit, is not explained or rebutted by any allegation or statement of the bill. It must, therefore, be held conclusive, that the money, the proceeds of the sale, was not, in point of fact, applied to the payment of the execution. For the same reason, it must be held conclusive, that the proceeds of the sale were appropriated in payment of other executions. The principle applies here, which prevails in all cases where the action of courts and the conduct of officers are in question, that is, that they have acted correctly, unless the contrary is shown. The presumption therefore exists, that the proceeds of the sale were legally and properly applied. It follows, hence, that th'e inference on which the charge in the bill was based, that the execution was “paid and satisfied,” was unfounded, and did not exist as matter of fact.

2. It has been repeatedly held by this court, that an execution, issued and tested after the death of the defendant, without a revival of the judgment, is not for that reason void, but only voidable. Smith & Montgomery v. Winston & Lawson, 2 How. Miss. Rep. 601; 9 S. & M. 216-18; Doe ex dem. Shelton v. Hamilton, 23 Miss. Rep. 497.

The execution, therefore, under which the sale in this case was made, was not absolutely void, but only voidable. And it has been uniformly holden that an execution which is not .absolutely void, ■ but only voidable, is valid until avoided. 9 S. & M. 216, 218.

In Smith Montgomery v. Winston & Lawson, quoted above, it was said “ the sale, made, as it was, without a revival, was not however void, but only voidable. It was good until regularly set aside, which cannot be done in this collateral manner.” And in Doe ex dem. Shelton v. Hamilton, quoted also, it was held that a sale of land made under an execution which was not void, but only voidable, Avas good, and could only be set aside by a direct suit for that purpose by the heirs or terre tenants.

These cases, and all the authorities, recognize the distinction between the execution and a sale made under it. A voidable execution, as the term imports, is one Avhich, upon a proper proceeding for that purpose, may be quashed or avoided. But before that is done, as the execution is deemed valid, a sale made under it passes the title, and a stranger who purchases will be protected.

It follows, hence, necessarily, that the title of a purchaser at execution sale, who is unaffected with notice of the defect in the execution, cannot be defeated upon the ground that the execution was irregular and defective, and therefore voidable. Jackson ex dem. McCrea v. Bartlette, 8 J. R. 361; Jackson v. Robins, 16 Ib. 537; Woodcock v. Bennet, 1 Cow. R,. 737; 6 Iredell, 288; 9 S. & M. 218.

When, therefore, it was said, in Doe ex dem. Shelton v. Hamilton, that a sale of land under a voidable execution was good until regularly set aside, and that a direct suit for that purpose, by the heirs or terre tenants, was the only mode in which it could be done, this' court is not to be understood as laying down the rule that an irregularity or defect which would not render an execution void, but for which it might have been avoided, constitutes of itself ground upon which, in a direct suit for that purpose, a court of law or equity could avoid a sale made under it. The principle announced was applicable to the case then under consideration. A principle which prevails, generally, in regard to the judgments and proceedings of all courts, and equally applicable to a sale, or title acquired under an execution, unquestionably valid, as to a sale made or title derived under a voidable execution.

The fact, then, that the sale was made in virtue of an execution not void, but only voidable, constitutes no independent ground for relief, it remains to be seen whether the case contains any other ingredient upon which the relief prayed for may be granted.

Want of notice of the judgment against Shields, and of the execution sale, and the consequent injustice and injury suffered by the heirs, are relied on.

The proceeds of the execution sale were not, in point of fact, applied in satisfaction of the judgment, but were appropriated, under order of court, to the payment of other judgments and executions against the principal in the forthcoming bond. The presumption exists that said appropriation was proper and legal. Hence no wrong or injustice was thereby inflicted upon Shields or any party to the execution.

It is not alleged that Shields or the appellees paid the judgment. It is not pretended that the judgment was discharged, paid, or satisfied in any way whatever, except by the sale made under the execution. How, then, can it be maintained that the appellees were damnified by want of notice 1 The proceeding by scire facias is intended as notice to a party to show cause why an execution should not issue, and to give him an opportunity to plead a payment or any other discharge. The record shows that neither payment nor other discharge could have been pleaded by the appellees, in case a scire facias to revive the judgment had been sued out. Hence a scire facias would not have availed them. They were, therefore, not injured by the want of notice; and as it is not charged that the sale was fraudulent, they have no just ground of complaint.

We are, therefore, of opinion that the demurrer should have been sustained.

Decree reversed and bill dismissed.

Note. — This case was decided at the April Term, 1856, and omitted, by mistake, to be reported among the cases of that term.