24 Miss. 517 | Miss. Ct. App. | 1852
delivered the opinion of the court.
The facts presented by the original bill are these : The complainant, on the first of February, 1845, lent Barry the sum of $400, and took his note, with a mortgage on a certain slave, Isaac, to secure the same. The mortgage, without a previous acknowledgment or proof, according to the statute, was placed upon record in the probate clerk’s office of Scott county; after which, Crockett and Harper recovered a judgment against Barry, upon which execution was issued, and levied upon the slave Isaac. The bill charged, that Harper, independent of the notice conveyed by the 'registration of the mortgage, had actual notice of the same before the filing of the bill.
To this bill the defendants, Harper and Crockett, filed a general demurrer; before a decision upon which the complainant presented to the court an amended bill, in which he states, and shows by it and the exhibits accompanying the same, that Harper and Crockett commenced a suit in the circuit court of Scott county against Barry and three other persons; that upon an application of the plaintiffs therein, the venue was changed to Madison county, and that the clerk of the circuit court of Rankin county appears to have certified the descriptive list, and record sent to Madison circuit court.
It is also averred, that since the rendition of said judgment, two of the defendants were released therefrom. The complainant avers that he had no knowledge of the important facts presented by the amended bill and exhibits, at the time the original bill was filed.
The application to file the amended bill and the argument of the demurrer came up together in the court below, when the amended bill was rejected, the demurrer sustained, and the original bill dismissed.
The registration of a mortgage without an acknowledgment
A judgment can only be collaterally attacked when it is void. The clerk’s certificate to the record sent to Madison circuit court, was intended as evidence, to inform the court that the record sent was true and complete. The parties to the suit were presumed to know what the' record contained, as they in fact made it, or at least furnished the material of which it was made. Their knowledge on the subject was, therefore, equal to that of the clerk of the court in' which the suit was pending; and knowing the matter to which he should have certified, it was competent for them to waive his certificate, which they did by making no objection in the circuit court. We are, therefore, of opinion that the judgment is not void; but as to the present proceeding it must be treated as valid.
The release insisted on occurred in this way. The judgment was rendered in the circuit court - in Madison county, on the 21st day of October, 1846, for $3,350.57. On the day after, the plaintiff entered a remittitur for the sum of $1,675.28, paid by W. A. Gatewood and Wade H. Holland, two of the sureties; and it was entered of record that no execution should be levied upon their property. This, under the statute of 1844, Hutch. Code, 555, 556, was not a full release to the other defendants ; but under the proviso of said act, the plaintiff can only collect from Barry, who is also a surety, one half of the $1,675.28. Barry’s liability was therefore reduced to $837.64. Upon this he is entitled to a credit of $430, made by virtue of a levy upon his property in 1848; thus reducing the amount of his
We are, therefore, of opinion that on sustaining the demurrer, the chancellor should have allowed the amendment, putting in issue the release. Besides, it is not clear that the bill should have been dismissed. The demurrer did not extend to Barry. He answered admitting the allegations of the bill, and was willing for a foreclosure of the mortgage.
Decree reversed, and cause remanded.
Note. — A petition for re-argument in tliis ease was filed by the plaintiff, but refused by the court.