81 Miss. 650 | Miss. | 1902
delivered the opinion of the court.
The question is on the action of the court below in sustaining the demurrer of the appellee Blumenberg to appellant’s (Hart’s) amended bill. From this bill it appears that on January 30, 1895, Mrs. Jennie L. Nelson was, so far as the record of deeds showed, the owner of the land in controversy, which land was
In Greaves v. Atkinson, 68 Miss., 598 (10 So., 73), there appeared a bill to enforce a resulting trust against the purchaser at a bankrupt sale, and it was held that if the bill had shown, as in the case before us, all the facts, and they showed on their face that defendant was a purchaser for value, demurrer might be interposed. In Atkinson v. Greaves, 70 Miss., 42 (11 So., 688), it is held that payment of consideration is prima facie evidence of want of notice ; and in the case at bar it must be taken from the allegations of the bill itself that Gardner and Nabors paid their bid at the execution sale, and that they sold to Blumenberg, who bought in good faith. If they became the purchasers at the sale and received a deed from the sheriff, and if it was sold to them for $21, all as charged in the bill, it must be assumed as against the pleading, that they paid their bid, especially as the only objection of the bill is that the price was so grossly inadequate as to necessarily put any purchaser on notice of defects in the title.
We cannot subscribe to the doctrine advanced that, in an attack like this on the title of a remote vendee, the inadequacy of the bid at execution sale can be invoked to destroy his title on the ground that this, per se, put him on notice. There is no charge of any fraud, conspiracy, or collusion between the judgment creditor and Gardner and Nabors or Blumenberg. There was no motion in the circuit court to vacate the sale, as in Baldwin v. McGee (Miss.), 14 So., 451, and in the case of Busick v. Watson, 72 Miss., 244 (16 So., 420). The posture .of the parties cannot be changed in this proceeding simply because of that.
A purchaser or creditor on examining the title would have found it perfect on the records in Mrs. Nelson, and was not bound to take notice of a trust deed executed by any other person. Her deed to Fredericks was not of record. It hung
On the main question in the case of M. V. Co. v. Chicago, etc., R. R. Co., 58 Miss., 846, is conclusive. There Chief Justice Chalmers comments on and explains Kelly v. Mills, 41 Miss., 267, and Walton v. Hargroves, 42 Miss., 20 (97 Am. Dec., 429), and, under the authorities he cites, sustains the title of an execution sale purchaser in a case like that before us. See Sledge v. Obenchain, 58 Miss., 675; Loughridge v. Bowland, 52 Miss., 558. Appellant must stand or fall by the recorded trust deed of Fredericks to F. C. Nelson, trustee, to secure Mrs. Nelson in the payment of a plain debt as it appears on its face, and, it being disconnected from the claim of title to her, cannot succeed in this litigation because of the registry laws. It is unfortunate for Mr. Hart that he did not see to it that Mrs. Nelson’s conveyance to Fredericks was filed for record. 28 Am. & Eng. Ency. Law, 179, note 2, under the heading “mortgage by vendee;” 2 Warvelle on Vendors, 714, note 2, p. 712. That conveyance is not produced, and it must be assumed, under the pleading, even if this was matei'ial, that it was a straight deed, reserving no lien and expressing the consideration paid.
Affirmed.
Harper & Potter, counsel for appellant, after the delivery of the foregoing opinion, filed a lengthy suggestion of error, making the following points :
‘£ Appellant, believing that -the opinion of the court contains error to his prejudice, suggests that the court erred in holding that the equitable vendor’s lien in a deed reciting payment upon its face cannot be maintained against a purchaser under execution sale. We concede the court has fairly stated the facts. We also concede that thé equitable vendor’s lien would not prevail against a tona fide purchaser for value, without notice. We also concede that the judgment creditor under the execution sale would get the entire interest of Mrs. Nelson in the land, and that the deed'to Fredericks expressed payment of the- purchase money; the lien of Hart being- merely the equitable vendor’s lien, as distinguished from an expressly re-' served vendor’s lien. ' But we deny that these facts aid the demurrant.
£ ‘ The court, in its opinion, states that on the main question involved here the case of Mississippi Val. Co. v. Chicago, etc., R. R. Co., 58 Miss., 846, is conclusive, and that there Judge Chalmers explains Kelly v. Mills, 41 Miss., 268, and Walton v. Hargroves, 42 Miss., 20 (97 Am. Dec., 429). We respectfully suggest the court is in error. That opinion does explain Kelly v. Mills, but merely distinguishes Walton v. Hargroves, and approves it. The Kelly case involved a resulting trust; the Walton case a vendor’s lien. ’ ’ [Counsel here quote at length from the opinion of Judge Chalmers in Mississippi Val. Co. v. Chicago, etc., R. R. Co., supra, and say:] “ The court will observe that case involved a conflict between an unrecorded mortgage and an execution sale, which came under our registry acts. In Walton v. Hargroves the deed asserted that the purchase money had been paid, which was not a fact, and it was held by this court that the secret equitable vendor’s lien would prevail against the judgment creditor.
■ “We ask the court to bear in mind that Mrs. Nelson, the judgment debtor, long before the rendition of the judgment, had parted absolutely with all her right, title and interest in the property. We understand that, without the aid of the statute, Mr. Hart, as the purchaser of the notes, would not have had the benefit of an unexpressed vendor’s lien, but our statute (the last part of §3503, code 1892) provides: ‘The assignee of. a claim for purchase money of land may enforce the vendor’s lien as the. vendor could.’ By force of this statute when the notes were assigned to him he became substitute for Mrs. Nelson. The taking of the deed of trust to secure the purchase money was not a waiver of the vendor’s lien. The great -mass of authorities cited by counsel for appellees does not sustain his position that it does. In Fish v. Howland, 1 Paige, 20, the vendor took a note in which a third person joined. The case of Gaylord v. Knapp, 15 Hun., 87, was governed by statute, and there had been a foreclosure of a valid mortgage for the purchase money. In Little v. Brown, 2 Leigh, 353, the only matter involved was rents and profits from the land. In Richards v. McPherson, 74 Ind., 158, a mortgage was taken, transferred to an heir as part of her distributive share, and later marked ‘ satisfied ’ by her, she taking a new note. In Young v. Wood, 11 B. Mon., 123, a mortgage was given upon the land conveyed, and other land, and a negro slave; In Hunt v. Waterman, 12 Cal., 301, the mortgage taken embraced other lands than those conveyed.
“We think the court may have fallen into error by considering execution purchasers in the light of innocent third persons instead of volunteers. We believe it will be hard for the court to hold the taking of a trust deed a waiver of the vendor’s lien without, in effect, overruling Davis v. Pearson, 44 Miss. 508. Cummings v. Moore, 61 Miss., 184, is much to the same effect. See, also, Partridge v. Logan, 3 Mo. App., 509.
“We think it necessary in this case to determine the question whether or not the trustee’s deed to Hart was void or voidable. If the deed was merely voidable its registration made it effectual under the provisions of our law. Code 1892, §2458.”
delivered the opinion of the court in response to the suggestion of error.
■ The forcible argument in support of the suggestion of error makes us think the former opinion not as clear and explicit as it should have been. We think counsel misconceive the case of Walton v. Hargroves, 42 Miss., 18 (97 Am. Dec., 429), which has been often cited and much misunderstood. Whatever may be said of it, it' was certainly a very different case from the one before us. There the effort- was by a judgment creditor to subject, in the hands of the vendee, land he had bought, and not paid for, and which was subject to the vendor’s lien. The court held that the vendor’s lien was paramount, because it was not affected by the registry laws. The case before us is that of a judgment against the legal owner of land, who sold it and conveyed it, but appeared by the record, in
Suggestion of error overruled.