Sevier v. McWhorter

27 Miss. 442 | Miss. | 1854

Mr. Justice Fisher

delivered the opinion of the court.

The appellant filed his bill in the superior court of chancery for the purpose of enjoining the sheriff of Madison county from selling certain slaves, which he had levied upon by virtue of an execution issued upon a judgment rendered in May, 1838, in the circuit court of said county, in favor of John M. Ross & Co. against U. B. Oglesby, John Briscoe, and others. The bill was, upon final hearing, dismissed by the chancellor, and from this decree the appellant has prosecuted his appeal.

The bill, as to John M. Ross & Co., was taken for confessed; and the only points in controversy arise upon the answer of Benjamin Chambers, alleging that the purchase made by the appellant of the slaves from Briscoe was fraudulent and void as to Briscoe’s creditors. Admitting, for the sake of argument, the truth of the answer in this respect, the question still presents itself, whether Benjamin Chambers has shown himself to be a creditor of Briscoe, and therefore entitled to make the defence set up in the answer.

The only evidence on this subject is contained in a power of attorney executed by Andrew McWhorter, one of the firm of John M. Ross & Co., in August, 1837, to William R. Chambers, authorizing him to collect the note upon which the judgment was recovered, and to deposit the money in the Bank of Columbia, South Carolina, to be applied in payment of a note made by John M. Ross & Co. and Benjamin Chambers. The only question here to be considered is, whether this stipulation in the power of attorney was an equitable assignment of the note, or of the money,* when collected, to Benjamin Chambers. His own answer disposes of this question. He says that William R. Chambers was not his agent, but the agent of John M. Ross & Co., and that John M. Ross, one of the firm, in the fall of 1841, revoked the agency of William R. Chambers. It is nowhere pretended that Ross had not the power to make this revocation, and to take the business into his own hands. The instrument appears, at least from the conduct of all the parties concerned, to have been treated as an ordinary power of attorney, revocable at the option of John M. Ross & Co. If this were so, then it was in no sense an assignment of either the note or the money when collected to Benjamin Chambers. An assignment once made and assented to by the assignee cannot be recalled or annulled at the option of the assignor.

Under this view of the case, it is not shown that Benjamin Chambers is in any legal or equitable sense a creditor of Briscoe ; and the bill having been taken for confessed as to John M. Ross & Co.; the - parties who appear to be interested in the judgment, it only remains to inquire whether, conceding the allegations Of the bill 'to be true, the complainant is entitled to a perpetual injunction against the judgment and execution.

The allegations of the bill on this subject are, that Sevier, the complainant, purchased the slaves in controversy from Briscoe, on the 4th of November, 1840, when the record of the circuit court showed that the execution of John M. Ross & Co. had been “ satisfied in full; ” that this entry was set aside at the spring term, 1842, of said court, without notice to the complainant ; that he purchased for a valuable and fair consideration, and had no notice whatever of any fact inducing him to believe that the entry of satisfaction was erroneous, or untrue.

Under this state of facts, admitted as they are by the pro confesso entered against John M. Ross & Co. to be true, the complainant ought to be protected in his purchase against the execution and levy upon his property.

Decree of the chancellor to be reversed, and decree here to be entered, perpetually enjoining the defendants below from enforcing the execution or judgment against the complainant or his legal representatives.

A petition for a reargument was filed by the counsel for the appellees in this case, but the court refused a reargument.