72 Miss. 966 | Miss. | 1895
delivered the opinion of the court.
The lien of appellant is derived from the statute, § 2698, code 1892, not from the judgment of the court, and, by the terms of the statute, ‘' takes effect, ’ ’ as against even purchasers or incumbrancers for a valuable consideration without notice thereof, from the time of commencing suit to enforce the lien. This suit to enforce the lien was commenced before appellee’s purchase. The judgment of the court below is erroneous on the further ground that the appellee is a purchaser pendente lite. Appellant having instituted his suit, a demurrer was interposed by the original defendant, the Vicksburg Cotton Oil Company, which was sustained and the suit dismissed. Before the dismissal of the suit, the property against which the lien was asserted was advertised for sale under two trust-deeds executed by the said defendant. After the dismissal of the suit, and before appeal to this court, the sale under the trust-deeds occurred, at which the parties represented by the present appellee bought. Subsequent to the said sale, an appeal was prosecuted to the next term of this court following the term of the court below at which the suit was dismissed, and this court, at that term, the October term, 1894, reversed the judgment upholding the lien. The appellee claims that he is to be protected in his purchase under these circumstances, and that he was a bona fide purchaser of the property before the appeal was taken, and that his title cannot be affected by the subsequent reversal.
The appellant is not a purchaser at judicial sale, and not
In Cheever v. Minton, 12 Col., 557, cited by counsel for appellee, the court expressly states that in that state (Colorado)
The judgment is reversed, the demurrer of appellant to appellee’s petition is sustained, the petition dismissed and the cause remanded, with directions to the court below to award the venditioni exponas as prayed.
Reversed and remanded.