31 Miss. 65 | Miss. | 1856
Lead Opinion
delivered the opinion of the court.
The appellee filed this bill in the Superior Court of Chancery, for the purpose of enjoining the appellants from enforcing a decree which they had obtained against Thomas M. Green and others, on the 18th day of January, 1850, in the said court, so far as the said decree embraced certain slaves in the possession of, and claimed by the appellee. The chancellor, upon final hearing, pronounced a decree for the complainant, from which this appeal has been prosecuted.
The counsel of the respective parties appear to agree as to the main facts, and we will, therefore, in stating the case, be governed by the abstract of appellants’ counsel, and; then determine upon such statement, whether they are entitled to a reversal of the decree of the chancellor.
“In 1839, Mr. Robinson obtained judgment against T. M. Green, for $14,844, which was never enrolled in Warren county, where Green resided, and where the property in controversy was, under the Act of 1844. Other persons had, previous to 1839, obtained
“Pending this suit between Robinson and Green and others, Burke, Watt & Co., of Louisiana, obtained a judgment against Mrs. Green, wife of the defendant, Thomas M. Green, and purchased the slaves now in controversy in payment of said judgment; the terms of the trade were agreed on at Yicksburg, between the agent of Burke, Watt & Co. and Thomas M. Green and wife, but the title being in Laughlin, who then resided in New Orleans, the slaves were sent thither, and he conveyed them to Burke, Watt & Co., who soon thereafter sold them to the appellee, Miller, for a full and fair consideration. Miller was, at the time of his purchase at the date of the decree, and at the filing of this bill, a resident and citizen of Washington county, in this State. It is alleged, and may be treated as a fact established, that neither Burke, Watt & Co., nor Miller, their vendee, had any actual notice of the pendency of the suit of Robinson against Green and others, in the Superior Court of Chancery. The slaves, after Miller’s purchase, having been brought back by him to this State, and placed upon his plantation in Washington county, were seized by the commissioner, under the decree in the case of Robinson v.
Upon this state of case, the counsel for the appellants has presented the following questions for our consideration:
1. That the equities of the parties, stating the case in the most favorable light for the appellee, are equal; and the appellants having both the legal advantage and the prior equity, must succeed.
2. That it is wholly immaterial whether the appellee, or the persons from whom he purchased had, in fact, actual notice of the pendency of the suit or not; the suit itself was notice, or at least all the notice the law required; and the purchasers are as much bound by the decree as if they had been parties to the controversy.
The general correctness of each of these positions may, to the fullest extent, be admitted. The question is not so much as to what the rule is, as to the state of facts necessary to bring the case within its operation. If Miller, by his purchase from Burke, Watt & Co., acquired but an equity, and if the appellants have an equal though prior equity, or have a legal right, unaffected by any superior equity of the appellee, his bill must of course be dismissed. We may, therefore, with these general remarks, pass from the first to the consideration of the second proposition argued by counsel; as the complainant must recover upon the strength of his title, or, more properly speaking, must show a title superior to the rights of the appellants under the decree, to satisfy which, they claim the right to subject the slaves in controversy.
It may at least admit of doubt, whether Burke, Watt & Co. .purchased, through their agent, the slaves at Vicksburg, in the county of Warren, or whether the purchase was consummated at New Orleans. But let it be conceded that the purchase was completed at Vicksburg; the question is, whether the doctrine of Us pendens can be made to apply to the purchasers, even under that state of case. This doctrine is at this day so well understood, that it is not deemed even necessary to cite authorities to illustrate it.
But, as already remarked, the question in this case is not what the rule is, but whether the facts bring the case within its operation. Robinson, who obtained the decree in the Superior Court of Chancery, under which the appellants claimed, asserted no title to the slaves in controversy, but only that Laughlin’s title, so far as Green’s creditors were concerned, was null and void, and ought,
This doctrine is, however, fully settled by authority. Take, for example, an unregistered mortgage, which, as between the parties and all who have notice, is binding. A bill to foreclose is filed, and pending the suit the mortgagor sells to an innocent purchaser without notice for a valuable consideration. Here is a purchase pendente lite. But it is now well settled, that the doctrine of Us pendens does not apply in such a case, for the plain reason that the law only required the purchaser to examine the register’s office to ascertain incumbrances upon the estate, or conveyances to other persons; and finding none there, he had a right to presume that none in fact existed. Newman v. Chapman, 2 Raw. 93; 19 Ves. 439. So in this case Burke, Watt & Co. were only required at the date of their purchase to examine the judgment roll in the proper office, to ascertain what judgments bound Green’s property. The judgment not being enrolled, they were not required to take notice of proceedings in other courts to enforce it. It was only required of them to know that it did not bind the property which they were about to purchase. It served their purpose, whether they in fact knew of the judgment or not, to know
Responding, therefore, in conclusion, to the position of counsel, we are compelled to hold that the appellee has, to say the least, equal equity with the appellants, besides a legal title to the slaves in controversy.
Decree affirmed.
Dissenting Opinion
delivered the following dissenting opinion:— ( .
I will very briefly state the reasons why I cannot agree with the opinion of the majority of the court.
The original bill, which- is the subject of consideration in this case, was filed by the present appellants, as judgment creditors of Thomas M. Green, for the purpose of setting aside certain fraudulent conveyances made by Green, and seeking to have the property thus fraudulently conveyed, subjected and sold by the aid of a Court of Equity, in satisfaction of their executions. These judgments were valid and unsatisfied when the bill was filed, and executions -upon them had been obstructed, and been returned “ nulla bona,” by reason of the alleged fraudulent conveyances. Of course, if the conveyances were fraudulent, the creditors had the right to go into equity to have them set aside, and to seek its aid in having the property, fraudulently conveyed, appropriated in satisfaction of them.
When the bill was filed for that purpose, and subpoena served, it was notice to all persons, at least in this State, claiming title under the parties to the suit, by purchase after that time; and such purchasers would stand in no better situation than the parties from whom they acquired their titles. This is the universal doctrine in relation to the effect of a lis pendens.
It is undoubtedly true, that a defendant, against whom there is a judgment which is not a lien upon his property, may sell that property, and the purchaser may obtain a good title ;' and upon the same principle of the jus disponendi, a party indebted may make a bona fide sale of his property. But after bill filed and
The proper distinction is stated by Lord Hardwicke, in Edgell v. Haywood, 3 Atkins, 357, thus: “ If, therefore, after the judgment, or even after the fieri facias, the debtor had assigned the property bona fide, and for a valuable consideration, and without notice, it would .be good, and prevail against the creditor. But after a bill brought, and a Us pendens created as to this thing, such assignment could not prevail.”
And it is well settled by authorities in this country, that if a creditor files a bill in his own name, and for his sole benefit, to set aside fraudulent conveyances, and to have the property applied, by the aid of a Court of Equity, to the payment of his judgment, and no lien has been or can be acquired at law, he acquires a spe^~ cific lien by filing the bill, and is entitled to priority over other j creditors; and that any party purchasing the property sought tcT be subjected to the claim, is a purchaser pendente lite. M‘Dermott v. Strong, 4 Johns. C. R. 687; Edmeston v. Lyde, 1 Paige, 637; Corning v. White, 2 Ib. 567; Farnham v. Campbell, 10 Ib. 598; Weed v. Pierce, 9 Cow. 722; United States Bank v. Burke, 4 Blackf. 141; Hadden v. Spader, 20 Johns. R. 554; Blake v. Bigelow, 5 Georgia, 437.
The filing of the bill under consideration being for the purpose, not only of setting aside the fraudulent conveyances, but to have the property sold and applied to the complainants’ claims, by the aid'of a court of equity, is tantamount to a seizure of the pro-" perty for the purposes of the suit, and so far as the interests of
An exception to the operation of the general rule, with respect to the effect of a Us pendens, prevails in the case of a bill filed to establish an unregistered mortgage against a bona fide purchaser, who had become such since the filing of the bill. And it is held, that the Us pendens is not notice to such purchaser, because the law has appointed the place where mortgages must be registered, in order to be notice to purchasers, and if there be no registry there, the purchaser is not held to constructive notice by any other means. The registration in such a case is the only thing that can operate as constructive notice. But in the present case, not only would the lien of the judgment, if it had existed at the time of the purchase be notice, but the commencement of the suit to subject the property to the complainant’s claim, independent of the lien of the judgment, is notice in law to all persons who might thereafter purchase from the defendants, pending the suit. If this be not true, the very principle upon which the whole doctrine of Us pen-dens is founded must be subverted, and the jurisdiction of the Court of Chancery, which has attached upon the property in controversy, affo.rds not the least impediment to the free alienation of the property, by the defendant to the action. The consequence would be, that all that a party, who had conveyed his property in fraud of his creditors, and against whom a suit in equity was pending, to set it aside and have the property applied by that court to the payment of the debt, would have to do, would be to prolong the litigation until the lien of the judgment had expired, and the jurisdiction of the court over the subject-matter, which had properly vested, would be utterly frustrated. And if the bill was filed to subject equitable assets, upon which a judgment at law is not a lien, the suit in chancery would afford not the least impediment to the defendant’s right of disposition.
It appears to me, with all deference, that such a doctrine is at war with the settled principles of the law of Us pendens, and is anomalous and dangerous in the extreme to the proper administration of justice, and that the effect of it would be, that a bill in equity, filed in order to subject property, fraudulently conveyed,