27 Miss. 227 | Miss. | 1854
delivered the opinion of the court.
The facts of this case seem to be, that the complainants, Johnson & Robinson, and Abram Lee, recovered judgments in the circuit court of Warren county, against one Kincheloe, on the 26th October, 1842, which were both placed on the “judgment roll” of that county, on the 25th April, 1844. O. C. ■Tiffany ifc Co. also recovered judgment against. Kincheloe in the same court on the 11th June, 1844, which was enrolled on the 5th July, 1844. Executions were issued on the complainants’ judgments to the April term, 1843, and returned nulla bona, and in the year 1845 an execution was issued on the judgment of Tiffany & Co., which was levied upon a quantity of cord wood, and other personal property of the defendant, which was sold at sheriff’s sale and purchased by one Buck, who, by an arrangement made with Mason & Burwell, the .plaintiffs’ attorneys, executed his note payable to Tiffany & Co. for $1,270, and for the balance of the purchase-money, paid
The bill is filed against Tiffany & Co., Mason & Burwell, and Buck, and prays that Mason & Burwell be decreed to hold the money and note in their hands as trustees for the complainants, who claim that they were entitled to the fund, and that it was the duty of the sheriff to apply the money and proceeds of sale to their judgments, because they were senior in date and in the judgment roll to that of Tiffany & Co., and that the money and note be delivered up to the complainants. The chancellor decreed accordingly, and from that decree this appeal is taken.
It does not appear by the record what return was made by the sheriff on the execution of Tiffany & Co. If the return showed that the sheriff took the note of the purchaser instead of making the money as he was commanded to do by the writ, it would show an act unauthorized by law, and the parties who might be entitled to money made on execution could derive no benefit from such an act unless it was done by their consent. In such a case, they could not move the court for an appropriation of the money, nor could the court make an appropriation of it to the parties entitled, because there would be no money within the power of the court. Such a return and sale would
Regarding the transaction as a payment of money by the .sheriff to a junior execution instead of senior judgments which were entitled' to it; the first question arising is, can the plaintiffs in the senior judgments come into equity to enforce their •claim against the parties who received the money ?
The sheriff is not a party to this suit, nor does it appear by any thing shown by the pleadings but that the complainants could have proceeded against him and his sureties by motion for the money to which they allege that they were entitled. The only ground upon which any equitable claim can be placed is, that the sheriff’ is liable to the complainants, and that Tiffany & Co., or their attorneys, having received money which should have been paid to them, the sheriff’ would have a right to recover it from the parties who received it; and that the ■complainants are entitled in equity to the same right which the ¡sheriff had against Tiffany & Co., or their attorneys. Conceding that such a right could be exercised under certain circumstances, could it be done without showing facts justifying the
There is certainly nothing unconcientious in the defendants here retaining the avails of their execution. The complainants had taken no step for several years to enforce their executions, and by the diligence of the defendants, their execution was levied, an advantageous sale was effected, and the proceeds applied to their claim, a valid execution and the only one in the sheriff’s hands. There is not only nothing unconscientious in permitting them to enjoy the fruits of their diligence, but it could never be permitted to parties occupying the position of these complainants to deprive them of the benefit of their executions, except in obedience to some imperative rule of law, and no such rule exists under the peculiar facts of this case.
Nor can it be said that Mason & Burwell are to be considered as holding the fund as trustees, and that the complainants are entitled to it on that ground. The complainants never had any specific lien upon the fund, and the defendants received it by
In any point of view in which the case can be considered, we think the bill cannot be maintained.
The decree is reversed and the bill dismissed.