Marlow v. Johnson

31 Miss. 128 | Miss. | 1856

Handy, J.,

delivered the opinion of the court.

The facts of this case appear to be, that on the 3d January, 1852, Johnson conveyed by deed of trust, to Botturs, trustee, a slave, to secure a debt due to Samuel Hoskins. On the 5th December, 1853, by another deed of trust, he conveyed the same slave to Botturs, as trustee, to secure another debt due to Hos-kins, which deed was not filed for record until the 24th December, 1853. In the mean time, and on the 15th December, 1853, Mar-low obtained a judgment against Johnson, which was regularly enrolled and execution issued thereon, which was returned “ nulla bona.” And on the 20th December, 1853, Napoleon W. Hoskins obtained a judgment against Johnson, which was duly enrolled and execution issued, and returned “nulla bona.” The trustee having advertised to sell the slave under the trust deeds, the judgment creditors filed this bill, claiming a lien upon the slave, in virtue of the judgments superior to the lien of the second deed of trust, on the ground that that deed, though executed prior to the rendition of the judgments, was not recorded until after they were rendered, and claiming to have the surplus of the proceeds of the sale of the slave in the hands of the trustee, after satisfaction of the first deed of trust, appropriated to the judgments.

To this bill the defendants filed a demurrer, which was sustained, and the bill dismissed.

The propriety of that decision depends upon, whether the judgments at law were liens upon the property; and that is a question of no difficulty under the rules settled by this court.

The first deed of trust was in full force at the date of the judgments, and is admitted to be a superior lien to any that could exist by the judgments. The legal title then was conveyed to the trustee, and the grantor of the deed had nothing in the property except his equity of redemption. And it is the settled law of this court, that such an interest is not the subject of levy and sale under execution, nor of the lien of a judgment. Thornhill v. Gilmer, 4 S. & M. 153; 27 Miss. 251, and cases there cited.

It being a mere equitable interest, upon which the lien of the judgment did not attach, the cestui que trust, under the second deed of trust, as the holder of a valid junior incumbrance, created by the act of the grantor himself, was entitled to come in after the satisfaction of the prior incumbrance, and receive the surplus. The trustee having proceeded to execute the deeds by selling the property for the benefit of both trusts, the judgment creditors had no equitable rights which could interfere with his execution of the trusts.

The decree is correct, and is affirmed.