| Miss. | Jul 1, 1873
The record in this case presents the question whether the decree in the court below'sustaining the demurrer of the defendant, Sarah C. Reed, to the complainants bill, and dismissing said bill, was or not erroneous.
On the 9th of July, 1866, the complainant, Lucy A. Whitfield, purchased of Charles Bas&erville and James Whitfield a certain lot and tenement in the city of -'Columbus, for $2,375, to be paid on the first day of February, 1867. At the time of the purchase a deed was made to her of the premises, and by agreement of the parties it was placed in the hands of a third party to hold as an escrow until the money aforesaid was paid.
It is alleged that on the same day the purchase was made and deed executed, possession was given to the complainant of the property, and that she has ever since had the possession and enjoyed the rents and profits of the same; that the purchase money aforesaid was paid in January, 1867, before due, and the deed aforesaid delivered to the complainant at that time, in accordance with its terms, and deposited for record and entered of record October 16, 1867; that on the 24th day of October, 1866, the defendant, Jeptha V. Harris, obtained a judgment in Chickasaw county against the defendants, C. F. Fields, Charles
It is charged that' said Henry B. Whitfield never had any interest in said property.
Complainant prayed for the removal of the cloud from her property aforesaid, and for an injunction enjoining further proceedings upon said levies, which was allowed.
The defendant, Sarah C. Reid, filed her demurrer to said bill for the causes: 1. Complainant had not made such a case as entitled her to the relief prayed for, and the facts stated did not warrant the injunction granted; 2. The bill had not been sustained by the affidavit of complainant.
The court below sustained the demurrer, dissolved the injunction and dismissed the bill; and thereupon the cause is appealed to this court.
The errors assigned may be summed up in this: That the court erred in sustaining the demurrer'and dismissing the bill of complaint, instead of granting the relief prayed for.
The first question that most naturally presents itself for our consideration is, what title or interest had Miss Whitfield in the property in dispute at the time the judgments aforesaid were rendered ?
The record shews that she had purchased of James Whitfield and Baskerville the property, and had possession of it over three months before either judgment was rendered, and had enjoyed the rents and profits from the time of the purchase.
That said Whitfield and Baskerville, at the time of sale, July 9, 1866, executed their deed in due form of law, conveying thereby the said property to Miss Whitfield, and delivered the same to a third party to hold as an escrow until she should pay the purchase money, which she stipulated to do by the first of February following.
The grantors had thus disposed of and conveyed all their title and interest in said realty to the plaintiff in error, reserving only an equity of redemption in case the payee should fail to pay the purchase money as stipulated.
We deem it scarcely necessary to refer to authorities in support of the position that a vendor may thus make a good delivery of a deed to a third person for the use of the vendee, subject to a condition stated in the deed itself. Graves et al. v. Tucker, 10 S. & M. 9, and authorities cited.
Miss Whitfield’s possession was obtained by purchase, evidenced by a deed from the grantors, as aforesaid, which possession was notice to subsequent creditors of her interest, title or estate in the property. Dixon & Starkey v. Doe ex dem. Lacoste, 1 S. & M. 70; Walker v. Gilbert et al. Freeman Ch. 85, and cases there cited; Morton v. Robards et al. 4 Ky. (Dana) 258; Tuttle v. Jackson, etc., 6 Wend. 213" court="None" date_filed="1830-12-15" href="https://app.midpage.ai/document/tuttle-v-jackson-ex-dem-hills-6118975?utm_source=webapp" opinion_id="6118975">6 Wend. 213; 1 Paige Ch., 125" court="None" date_filed="1828-06-30" href="https://app.midpage.ai/document/in-re-howe-5547635?utm_source=webapp" opinion_id="5547635">1 Paige, 125, 280; 2 ib. 217, 586; 37 Miss. 554" court="Miss." date_filed="1859-10-15" href="https://app.midpage.ai/document/alexander-v-eastland-8257521?utm_source=webapp" opinion_id="8257521">37 Miss. 554.
If the subsequent judgment creditors acquired any lien upon said property, it was and must be held to be subject to the prior equities of Miss Whitfield, obtained and made public prior to the rendition of said jndgments. /
An equitable estate in realty acquired and possessed before a judgment rendered, is not prejudiced by such judgment, and it is not necessarily dependent upon the legal title or the record of an existing deed as against subsequent creditors. Coleman v. Cocke, 6 Rand. 618" court="Va." date_filed="1828-12-17" href="https://app.midpage.ai/document/coleman-v-cocke-6806008?utm_source=webapp" opinion_id="6806008">6 Rand. 618; 1 Tuck. Com. 258-268; 9 I. R. 463; 3 Atkins, 640; 4 Marsh. 293.
What title or interest had Whitfield and Baskerville, upon which the judgments in question could be a lien at the time of their rendition ?
It was not the legal title, for they had conveyed it. They had no legal estate in the property, but had a contingent equity of
The judgment creditors clearly mistook their remedy when they sought to subject the property to the payment of their judgments instead of pursuing the purchase money due from Miss Whitfield at the time the judgments were rendered.
We do not controvert to the doctrine claimed by counsel as to the character of a deed held by a third person as an escrow, -that is, as a general rule it does not take effect until a second delivery ; but it is equally true, that whenever either justice or necessity demands a resort to fiction to ward off intervening claims or liens, courts of equity will give it a relation back and cause it to take effect from its first delivery as an escrow. 4 Kent Com. 454; 14 Ohio, 310.
So in the case at bar, if justice requires that the deed to Miss Whitfield, placed in the hands of a third person as an escrow, should take effect from its first delivery in order to protect her prior equities in the premises, we should be bound to give it that effect, especially so, when the record shows that the sale sought to be made is by virtue of a levy made after she had paid the purchase and received deed by second delivery and left for record, with the further fact, that she had been in possession and receiving the rents for about eighteen months, which was notice to the creditors of-her title, and after the final delivery of the deed, if not before, equivalent to a record as between her and said judgment creditors.
There is another point referred to by counsel; that is, that Henry B. Whitfield, one of the judgment debtors, had no interest in the realty sold to Miss Whitfield; that the title was in James Whitfield and Charles Baskerville, who conveyed it to her. The judgments were against the said Henry B. and Baskerville, and could not be a lien upon anything more than Baskerville’s interest therein. But it seems unnecessary, from the view we take of the case, to consider this point at length.
We are clearly of the opinion, from the facts involved in this case, that the equity of the case was with the complainant belowr and that the court erred in sustaining the demurrer and dismissing the bill.
The decree must therefore be reversed, and the cause remanded.