42 Miss. 18 | Miss. | 1868
delivered the opinion of the court.
It appears from the record in this ease, that the appellee, on the 20th day of January, 1860, sold and conveyed by deed lots 10, 11, 12, 15, and 16, of land, in the town of McNutt, in the county of Sunflower, in this State, to one Green B. Davis, and took his promissory notes of that date to secure the payment of the purchase-money, which, it is admitted, remains unpaid; that said Davis, at the time of the purchase of said lots or parcels of land, was indebted to Thomas Henderson and Peal in a certain sum of money, for which he confessed a judgment in the Circuit Court of said county, on the 8th day of Junoj-1860, and that said judgment was afterwards assigned by said Henderson and Peal to the appellant, who was proceeding to sell said lots under an execution emanating from said judgment, when he was restrained from so doing by injunction obtained by the appellee, who filed his bill in the Chancery Court of said county, to enforce his vendor’s lien upon said lots, and to subject the same to the payment of the purchase-money. And that, upon the final hearing, the chancellor perpetuated the injunction, declared the vendor’s lien to
The only question presented by this record for our decision is, which lien shall prevail, — that of the vendor, or that of the judgment creditor.
The general lien of a judgment on lands does not, per se, constitute a property or right in the land itself. It only confers a right to levy on the ’ same, to the exclusion of other adverse interests, subsequent to the judgment; and, when the levy is actually made on the same, the title of the creditor relates back to the' time of the judgment," so as to cut'out-intermediate incumbrances. Conard v. The Atlantic Insurance Company, 1 Peters, 443. The judgment creditor takes in execution, under his judgment, all that belongs to his debtor and nothing more. Pie stands in the place of his debtor, when he purchases under his judgment. He takes the property of his debtor, subject to every .liability under.'which the debtor himself held it. The.general lien of a judgment on property is subject to all the equities which exist at the time in favor of third' persons, and a court of equity will limit such lien to the • actual interest of the judgment debtor in the property. Keirstead v. Avery, 4 Paige, 15, S. & M. Ch. Rep. 344, Freeman’s Ch. Eep. 96.
, The vendor’s lien is founded in natural justice, and the presumed intent of the parties to the. contract. Both forbid that the vendee shall: enjoy, the property without payment of the consideration. In equity, the vendee is not the owner ádver'sely to the lien of the vendor, but is treated as a trustee for him until payment of the purchase-money. ■ This lien exists against the vendee,' and against volunteers and' purchasers under liim, with notice, or having an equitable title only. And it will also prevail against assignees claiming by general assignment under bankrupt or insolvent laws, and against assignees claiming under a general assigment made by a failing debtor for the benefit of creditors; for in such cases the assignees are deemed to possess the property subject to all the
• The vendor of land who has taken no security, although he has made an absolute conveyance by deed, with a formal acknowledgment, in the deed, or on the back of it, that the consideration has .been paid, retains an equitable lien for the purchase-money, unless there has been an express or. implied waiver and discharge of it; and this lien will be enforced in equity against all persons except creditors holding under a bona-fide mortgage or deed of trust, and bona-fide purchasers for valuable consideration without notice. Gilman v. Brown, 1 Mason, 213; Tompkins v. Mitchell, 2 Rand. 428; Ross v. Whitson, 6 Yer. 50; Dunlap v. Burnett, 5 S. & M. 710; Holloway v. Ellis, 25 Miss. 103; Patterson v. Johnson, 7. Ohio, 226.
Purchasers and mortgagees of an equitable estate take the same subject to the vendor’s equity; and purchasers and mortgagees of the legal estate, with notice of the lien before paying the purchase-money, will be postponed to the vendor’s equity. Por, in both these cases, the purchasers and mortgagees have no greater equity than the vendor. In the first case, they have but an equity, and, as between equal equities, the maxim applies, qui prior est in tempore, potior est m j%ore. And, in the other case, the legal estate is not allowed to prevail, in consequence of the purchaser’s equity having been destroyed by the notice which he had when he paid the consideration. Roberts on Principles of Equity, 94.
' Upon the whole, we think there is no error in the decree of the court below.
The decree must, therefore, be affirmed.
