Ivey v. White

50 Miss. 142 | Miss. | 1874

Simrall, J.,

delivered the opinion of the court :

The record is unnecessarily prolix and voluminous, which serves to obscure, rather than to elucidate, the real controverted issue.

Both parties trace title back to H. Woldrop as a common source.

The complainant claims through a sheriff’s sale, made in 1868, to one Denton, under two judgments recovered against John Ivey, the husband of the defendant, in suits brought by a mechanic and a material man, asserting and maintaining a mechanic’s lien on the premises in controversy. The successive transfers of the property are as follows : The sheriff, under the judgments to Denton, who, in 1861, sold and conveyed to Shepperd, who, in 1865, conveyed to the complainant White. The title came from Woldrop to the judgment debtor Ivey.

The defendant, Mrs. Ivey, claims title as follows : In 1857, February 28th, she and her husband convened to Scoggins, who conveyed to her March 2d, 1860; the latter deed was recorded Aoril 6th, 1860, the former August 31st, 1857.

The testimony proves that Denton, and the subvendees under him, including the complainant White, have been, under their deeds, in the possession of the premises.

The records of Chickasaw county were destroyed, or greatly mutilated and injured, by the conflagration of the court house during the late war, so that it was impossible to produce a complete transcript of the record of judgments, under which Denton purchased. It appears that these were special proceedings,-claiming the mechanic’s lien, which were sustained and vindicated by the judgments. Such lien extends to and takes hold of the freehold, if such was the nature of the estate, and is prior and superior to all subsequent incumbrances. Otley v. Haviland, Clark & Co., 36 Miss. Rep., 37; Buchanan & Smith v. Barksdale, 43 Miss., 90; McLaughlin v. Green, 48 Miss., 202. If there be a prior incumbrance, the lien will be operative on the buildings and erections, to the exclusion of the prior lien, but not upon the land itself. (Cases cited.)

Such lien begins either from the date of the contract. Bell v. Cooper, 26 Miss., 650. Or from the commencement of the work on the ground towards the erection of the building. 48 Miss.r 204 {supra). The purchaser under such special judgment, acquires the privileges and benefits of the lien, and his title relates-back to the lien and is invested with its advantages, so as to defeat incumbrances or conveyances, made by the judgment debtor subsequent thereto. Cochran v. Wimberly, 44 Miss., 505; Lambeth v. Elder, ib., 88. It would follow, therefore, that Denton could refer his title acquired, by the sheriff’s sale and deed, back to the time when the mechanic’s lien was created, and from that time it would be superior and prior to subsequent incumbrances and conveyances, suffered or made by the judgment debtor Ivey.

The contract with Armstrong, reserving the lien for lumber, is dated March 4, 1856. It is admitted that the judgments were obtained in 1856 or 1857 ; the precise date not known. The conveyance from Ivey and wife to Scoggins is dated February 28r 1857, who conveyed to Mrs. Ivey April 6, 1860. It is therefore manifest that the mechanic’s liens are older than the title derived by Mrs. Ivey through Scoggins, and is the better title, unless its superiority should be overcome for other reasons.

Mrs. Ivey insists that her husband could not incumber the property with the mechanic’s lien at all, because the purchase was made in the first instance from Woldrop with her means.

This position is hardly sustained by the testimony. It seems that the deed was made by Woldrop to Ivey at the request of White, for the reason that Ivey was the surety for White, who subsequently paid the purchase money to Woldrop.

However that may bé, the legal title was in Ivey the husband, who incumbered the property for its improvement, without notice to the mechanics of the wife’s claim. And there was an actual sale under judgment for these debts to Denton, who bought without notice, and conveyed to his vendee, also, without notice. Against these parties, the secret resulting trusts, if proved, could not be set up, Boon v. Barnes, 23 Miss., 138. No question is made by counsel, in this court, that the sheriff’s sale was not made at the proper place, or that it was fraudulently conducted.

The decree is affirmed.