Holloway v. Ellis

25 Miss. 103 | Miss. | 1852

Mr. Justice Fisher

delivered the opinion of the court.

The complainant sold to Robert Cook a certain tract of land in Holmes county, the title to which was at the time in one Sargeant, who, at the instance of complainant, conveyed the land to Cook.

After this conveyance, an "execution against Cook was levied on the land by the sheriff of Plolmes county, who sold the same at public sale to Holloway.

The bill was filed to enforce the vendor’s lien against the land for the unpaid purchase-money. Holloway insists that he is an innocent purchaser without notice. Will this defence avail him in the present action? The principle appears to have been settled by this court in the case of Dunlap v. Burnett et al., 5 S. & M. 710. The court in that case said: “ This doctrine as to creditors is intended to be confined to such as claim under a deed of trust or mortgage. Such conveyances are a lien, and something more; they constitute a transfer of the property itself. They form a special assignment, and their effect differs from a general lien, such as that created by a judgment or general assignment by operation of law. These are regarded as subject to all equities which exist at the time in favor of third persons, and a court of equity will limit such lien to the actual interest of the judgment debtor.

There is nothing in the case now before us to take it out of the operation of this" rule, and the decree must, therefore, be affirmed.