27 Miss. 461 | Miss. | 1854
delivered the opinion of the court.
This was a suit instituted in the superior court of chancery to enforce a lien upon land, for the price, reserved in the deed of conveyance. The lien was sustained, and a decree rendered, by which the land was ordered to be sold for the amount ascertained to be due. From that decree the defendant has appealed.
There is no dispute about the facts of the case. Washington Dorsey, the testator of the appellees, sold to W. G. Rasberry certain land, and executed to him a deed conveying the same in fee. By a stipulation contained in the deed, it was to constitute “ a full title in law and equity” for the land to Rasberry,
A partition of the land was made between Rasberry and his cotenants, and the part which was allotted to Rasberry was sold under an execution issued upon a judgment rendered against him in 1836, and purchased by the appellant. The note falling due in 1840 was assigned by Dorsey to one Plummer, who filed his bill in the circuit court of Yazoo county to enforce the lien reserved in the deed as to the note held by him. That bill was filed against the appellant and Rasberry alone. Dorsey was not made a party to it. Plummer obtained a decree, under which the land allotted to Rasberry was sold, and the appellant became the purchaser for three hundred dollars. "When the sale was made under the decree, the appellant had notice that the note which matured in 1839 was outstanding, and that a sum was claimed then to be due upon it.
In 1844, prior to the commencement of the present suit, Dorsey filed a bill in the circuit court of Yazoo county, to enforce his lien as vendor, or the lien which was specially reserved in the deed by which the land was conveyed to Rasberry. That bill was dismissed upon demurrer for want of jurisdiction, the court holding the deed not to be a technical mortgage, and the amount demanded by the bill exceeding the equity jurisdiction of the court.
The decree of the circuit court rendered on that occasion was relied upon as a bar to the present suit, and is urged here as a ground for reversing the decree of the chancellor.
It is the settled rule, that a bill regularly dismissed upon the merits may be pleaded in bar of a new suit for the same matter. This rule is founded upon the most obvious policy; for if the same matter or the same title could be drawn into question again by another original bill, it would open a wide door for the introduction of perjury, and render litigation endless. Perine v. Dunn, 4 John. Ch. R. 142; 7 Ib. 4. But “ to make the dismission of a former suit a technical bar, it must be an absolute decision upon the same point or matter; and the new bill,
In the case before us it does not appear from the record that the decree of the circuit court dismissing the bill filed by Dorsey, was rendered in a suit in which the appellant, or any person through whom he derived title, was a party defendant. The only allegation in the pleadings in reference to this matter is contained in the appellant’s answer, in which it is stated “ that in 1844 the said Dorsey filed his bill in the circuit court of Yazoo county, seeking to subject this land to the payment of the note now filed in this cause, and made a part of complainant’s bill; which bill was demurred to generally, the demurrer sustained, and the bill dismissed.” It is evident, therefore, upon the rule above laid down, that the appellant was not entitled to set up the decree of the circuit court dismissing the bill as a bar to the present suit.
The deed of Dorsey to Rasberry must be regarded as either a conditional sale, or as a mortgage intended to secure the purchase price of the land. If it be a conditional sale, then no title vested in Rasberry as the condition, that is, the payment of the money secured by the notes was never performed. But, without doubt, the deed, although not in form a technical mortgage, must in equity be regarded as such, and all after incidents which attach to an instrument of that character be given to it. Baldwin et al. v. Jenkins et al., 23 Miss. R. 207. Hence the sale under Lambright’s execution against Dorsey vested no title in the appellant. Thornhill v. Gilmer, 4 S. & M. 153; 5 Ib. 730; 13 Ib. 431.
Dorsey, or his representative, was a necessary party to the writ instituted by Plummer against Rasberry for a foreclosure and sale of the land for payment of the note which had been assigned by Dorsey. The decree, therefore, rendered in that case and the sale made under it, did not divest the lien which Dorsey held as a security for the note which had not been assigned. Moreover, the appellant was not entitled to resist relief sought by the bill on the ground that he was a bond fide purchaser without notice, as it was admitted that he knew the
In the ease of the Bank of England v. Tarlton et al., 23 Miss. R. 173, it stated as the settled doctrine of this court, that all debts secured by mortgage and due at the date of foreclosure, unless a preference be given to some of them by the terms of the mortgage deed, or unless the original creditor in assigning any of them designed to impart a right of prior satisfaction to the assignee, should be paid pro rata in case of an insufficiency in the mortgage fund to pay the whole of them, whether the controversy be between the surety of the mortgagor and the mortgagee, or between the different assignees of the latter.
There is no fact in the record before us which could authorize the presumption that Dorsey, when he assigned the note to Plummer, intended to confer upon him a right to be first satisfied out of the mortgage property. The decree of foreclosure pronounced in the suit by Plummer against • Rasberry, and the sale made in execution of it, was, as we have seen, inoperative as to Dorsey. Hence, upon the recognized rule of this court, the appellees were entitled to a decree for the sale of the mortgaged premises. But upon'the same rule they are not entitled to have the proceeds appropriated to the payment of their claim in exclusion of the appellant, who must be considered as standing in the attitude of Plummer, the assignee of one of the notes, holding the interest in the lands which passed to Rasberry by operation of the conveyance made to him by Dorsey. Upon this view the appellant is entitled to a pro rata distribution of the proceeds; and his demand must be measured by the amount paid for the property when sold under the decree against Rasberry, and the interest accruing thereon up to this date, or up to the date of the sale which will be directed.
The decree pronounced by the chancellor directs that the proceeds arising from the sale of the mortgaged property shall be applied, after payment of the costs, first to the payment of the amount ascertained to bé due to the complainants, in exclusion of the claim of the appellant. According to the rule above laid down, this was erroneous. The proceeds should be distributed pro rata, if insufficient to pay the demands of both
We therefore reverse the decree, and order a decree to be entered in this court in conformity with this opinion.