70 So. 561 | Miss. | 1915
delivered the opinion of the court.
Appellant, W. W. Pearce, was claimant in the circuit court of Lauderdale county of certain machinery levied on under an execution issued upon an enrolled judgment recovered and owned by appellee against one J. P. Spar-ling. Judgment was rendered against W. W. Pearce and the sureties on his claimant’s bond, ánd from this judgment the claimant and his said sureties appeal.
The first assignment of error submits that the court below erred in granting a peremptory instruction to appellee and in refusing a peremptory instruction in favor of appellant. Appellee contends that the description in the deed of trust, held by appellant against J. P. Spar-ling, is void for uncertainty, and also that W. C. Sams, plaintiff in replevin, was not legally appointed as substituted trustee. The replevin suit was, however, pro
Under our construction of the statute in question, appellant acquired a good title to the property at the sale made by the sheriff under the statute. By the terms of this statute, the money realized by the sheriff at the public sale stood, after the sale,' in lieu of the property.. The writ of replevin was lawfully issued, and the property- in question lawfully taken in possession under the writ of replevin; and appellee is in no position to question the validity of appellant’s judgment in the replevin suit. The sheriff, being lawfully in possession of the property,, was by the express terms of section 4229 empowered to make sale of it; and by the further expressed provisions of the statute, ‘‘the proceeds of the sale, after payment of proper expenses, shall be .in lieu of the thing; sold.” The statute contemplates, of course, that only one sale should be made; and, unless the purchaser takes, the property freed of and not subject to the execution issued and served subsequently to the issuance and service of the writ of replevin, then a valid sale could not, under such circumstances, be made at all under the statute, and the beneficent provisions of the statute in such ease could not be availed of. Appellant, in our judgment, took a good title at the sale in question; and the peremptory instruction, instead of being in appellee’s fayor, should have been in favor of appellant.
Let the judgment of the court below be reversed, and judgment entered for appellant.
Reversed.