Nabours v. Cocke

24 Miss. 44 | Miss. Ct. App. | 1852

Mr. Justice Yerger

delivered the opinion of the court.

James Mullins, deceased, on whose estate-the appellants have administered, purchased in March, 1841, at a sale made by the administrators of Jester Cocke, deceased, a tract of land in Monroe county, which had belonged to Jester Cocke in his lifetime. In April, 1844, the defendant, J. B. Davis, purchased the same land at marshal’s sale, by virtue of an execution, which 'issued from the circuit court of the United States, at Jackson, against James Atkins, Jester Cocke, Alfred Mullins, and Stephen Cocke. This execution, it seems, was under the control of Buckingham, a nephew of Stephen Cocke, and it had been levied by his direction upon the land. Some time after the purchase by Davis, James Mullins applied to an attorney, Henry •R. Carter, and consulted him in relation to the matter; when he was informed by Carter, that if the judgment on which the execution issued, was a lien on Jester Cocke’s land, and the sale was regular and fair, without frauds that Davis acquired a good title, but that he could not give him a positive opinion on the subject without examining the record and papers in the case, which were on file at Jacksoñ. The witness, Carter, who was introduced by the defendants, further proved that after this conversation with Mullins, a conference was had between Mullins, Stephen Cocke, Buckingham, Davis, and the witness, and at that conference Davis claimed the land by virtue of the marshal’s sale. Buckingham claimed to be the owner of the execution, and Cocke stated that he was entirely disinterested, and Davis, Cocke, and Buckingham all stated that there was no collusion or fraud between them; that Davis was the bond fide purchaser of the land; that Buckingham was real owner of the •execution, and that the lands were liable to sale under the execution. The defendant Cocke made this statement, and stated the facts of the case upon which his opinion was founded and the circumstances connected with the case at Jackson, which facts and circumstances the witness says he does not recollect; but if true, as represented, no doubt could have rested on the mind of any one. That Davis, by the execution sale, obtained a better title than Mullins had acquired at the sale of the administrators, and so Carter then informed Mullins, who, acting on the belief that the facts were true as stated, made a compromise of the matter, to the effect that the marshal, who had not made a deed to Davis, should make one to Mullins, and that Davis should relinquish claim to the land to Mullins, and in consideration of this, Mullins was to pay $1,000, of which the sum of $500 was to be paid presently, part in cash and part in a note he held on the defendant Cocke, and the remaining $500 was to be paid by the note of Mullins for that amount. This agreement was reduced to writing, and was consummated. The bill in this case was filed to set aside that agreement; it states,in substance, that since the consummation of the agreement, the complainant has ascertained that he was deceived and imposed upon; that at the time the compromise was made, the defendant Cocke was in fact the owner of the judgment and execution under which Davis purchased, and that Davis’s purchase was made in fact for Cocke’s benefit and at his instance; and that it was a fraud in Cocke to have sold the land, because he had become a party to the forthcoming bond on which the execution issued at the instance of Jester Cocke, who had made a deed of trust on the land in controversy, to secure said Stephen from loss or liability on the bond; and that Stephen had, prior to the sale made by the administrators of Jester Cocke to complainant, released the land frota the operation of the deed of trust, to enable them to sell the land. The defendants in their answer deny all fraud and collusion. Cocke and Buckingham both deny that Cocke owned the judgment or controlled it, and affirm it positively to have belonged to Buckingham and to have been controlled by him. Davis denies that he bought the land at the request of Cocke, but states that he bought it for himself, intending, however, to give Cocke the benefit of it. The proof is not sufficient, in our judgment, to sustain the bill upon this point in opposition to the answer.

But there is another ground, upon -which we think the appellants are entitled to relief. It is manifest from the whole record, and particularly from the testimony of Carter, that both parties made the compromise upon the belief and understanding that there was a judgment in the circuit court of the United States at Jackson, on the forthcoming bond against Jester Cocke and others, which was a lien' upon the property, and by virtue of which, and the execution upon if, under which Davis bought, a -good title was conveyed to Davis. But the fact is otherwise. The bill states, and the copy of the record filed with it, as an exhibit, proves the allegation, that at the May term, 1837, of the district court of the United States, at Jackson, a judgment was rendered in favor of N. & J. Dick'& Co. against James Atkins; that an execution on this judgment was issued on the 2d of March, 1839, which was levied on certain property, for which a delivery bond was executed 'by Jester Cocke; Alfred Mullins, and Stephen Cocke, but to which bond the said Atkins was not a party; and that the execution in this case was based upon this forthcoming, or delivery bond. The statute only authorizes the party whose property is levied upon to execute a forthcoming, or delivery bond, and it is only to bonds so executed by such party, that it gives the force and effect of a judgment. In this case, Atkins, the sole party in the judgment, and upon whose property the execution was levied, did not execute and was no party to the bond given for the forthcoming of the property; and hence, whatever might have been the force and effect of the bond as a common law obligation, it was not a bond given in conformity to the statute, and, therefore, not a bond to which "the statute gave the dignity, force, and effect of a judgment; and no execution upon it could, therefore, have emanated to subject the property of the obligors to the bond; and the execution which was issued upon it not being founded upon any judgment, was a mere nullity, did not authorize the marshal to sell under it; and a sale by virtue of it could not convey any title. It is true that, as a general rule, a court of equity will not relieve a party from a contract made by him under a mistake, or in ignorance of the law. But it is no less true that it will grant relief where both parties enter into the contract under a mutual mistake in a material fact, and -without which mistake the contract would not have been made. We consider this to be such a case. We are satisfied that both parties entered into the compromise with the distinct understanding and belief that a forthcoming bond had been given by Atkins in the suit of N. & J. Dick & Co. against him, upon which Jester Cocke, Alfred Mullins, and Stephen Cocke had become sureties; and that the same had been forfeited, and existed as a statutory bond, having the force and effect of a judgment against the obligors thereto. In this we have seen they were mutually mistaken; and, as the compromise was made under a mistake of such a material fact, we think it should have been set aside, and that the money paid by Mullins, with interest, should be refunded, and his note surrendered to his administrators. Let the decree be reversed, and the cause remanded for further proceedings, on the principles laid down in this opinion.