Tucker v. Hadley

52 Miss. 414 | Miss. | 1876

Chalmers, J.,

delivered the opinion of the court.

Hadley sold a tract of land to W. A. Tucker, and made him. a deed. Tucker sold to his son-in-law, Bird, and made deed. One of Tucker’s notes for the purchase money remaining-unpaid, the bill was filed to subject the land to its payment. It appears that Bird agreed to pay Tucker $2,500 for the land,, but actually paid nothing. The land having been levied on by some judgments against Tucker, older than the deed to Bird, the latter rescinded his trade, making a deed back to Minerva T. Tucker, the widow of W. A. Tucker, and receiving-back his own notes. Whether Bird knew, at the time of his. purchase, that there was an outstanding lion does not appear, nor is it important, since, having paid 'nothing, he was not a purchaser for value, nor had he any interest in the land after the reconveyance by him, which occurred some time before the institution of the suit. The appellant, Minerva Tucker,, had full knowledge of the outstanding lieu, and cannot escape-its effects by taking shelter beneath the reconveyance from her son-in-law, Bird, even if the latter was originally an innocent purchaser, such reconveyance being nothing but a cancellation of the original trade made between her husband and son-in-law, and Bird himself having paid nothing for the-land. Neither can she defeat the vendor’s lieu by her purchase at the sheriff’s sale, as to which purchase we remark that there is no sufficient proof in the record. The vendor’s lien will prevail over a title acquired at execution sale. Walton v. Hargrove, 42 Miss., 18. The decree subjecting the land to the payment of the unpaid note was, therefore, correct upon the merits. It is objected, however, that it is erroneous bjr reason of various defects in the proceedings. To the original and amended bill the administrator and heirs of W. A. Tucker were made parties, as was also his vendee and son-in-law, Bird. The service .of process as to.some of these on the original bill was defective, and as to the amended bill there was no process issued or served. Formal leave was granted, and entered of record, for the defendants generally to answer within thirty days. Minerva Tucker alone answered. The cause progressed to final hearing, and resulted in a decree for a sale,’ and in a sale. Upon the coming in of the report of sale complainant moved for confirmation and a writ of assistance, ■presenting for -¿his purpose a petition supported by affidavit. Citations were issued upon this petition, summoning the defendants to appear and show cause against it. Some of them appeared and objected to a confirmation of the sale, because of the want of process and improper service of process upon themselves and others as to' the original and amended bills. These objections were by the court sustained, the sale of the land vacated, the purchase money refunded to the purchaser, the cause remanded to the rules, and new process issued for the defendants. After the issuance of several alias writs of summons, the defendants were at length brought before the court. The entire testimony was retaken and the cause was reheard, with the same result.

From the final decree condemning .the land again to be sold Minerva Tucker alone appeals. It-is urged b3r appellant that whilst the first decree of sale was defective, if not void, by-reason of want of legal notice to several of the defendants, yet that said decree being- final in its character the court .below lost jurisdiction after its rendition, and that its defects could only be cured by appeal. Hence they argue that all the subsequent proceedings were corcim non judice and void, inasmuch as said decree stood unreversed and not appealed from. It seems a sufficient answer to this position to say that, when a confirmation of the sale under the first decree was asked, the defendants objected because of the defects in the proceedings, and virtually asked thereby for a new hearing upon proper notice. The rehearing was granted, and upon due notice properly served, and upon testimony taken afresh, the final decree, now appealed from, was rendered. It‘would certainly seem that they cannot now be allowed to object to this action. There is no purchaser insisting on his rights acquired at the sale under the first decree. The purchaser was the complainant in the bill. It is objected that on tbe second hearing the ■case was referred to a commissioner to report the amount due on the note, without any adjudication first had declaring, that the note Avas due, or that it constituted a lien on the land. If this was irregular it was cured bjr the decree rendered on the coming in of the report, in which the amount due is established, and it is declared that “ the claimant is entitled to his vendor’s lien.”

Decree affirmed.