Work v. Harper

| Miss. | Apr 15, 1856

Handy, J.,

delivered the opinion of the court.

Two questions are presented in this case.

1. Whether, as the lien of the judgment enjoined is now barred by the Statute of Limitations, the appellant is not entitled to his injunction, and to have his title protected under his mortgage.

2. Whether the judgment of the appellee, being attempted to be enforced against a surety, and there being no affidavit filed as to the insolvency of the principal in the judgment, could be enforced against the property of the surety.

Upon the first point, it appears that the judgment of the appellee was rendered on the 21st October, 1846, and on the 16th January, 1847, the appellant’s bill was filed, by which the appellee was enjoined from proceeding to execution upon his judgment until such time as the lien of the judgment was barred by the Statute of Limitations. The appellant now seeks to avail himself of the expiration of the lien, in order to protect his title under the mortgage. And the question is, whether he is entitled to do so, under the sanction of a court of equity.

• It is not, and cannot properly be denied, that the judgment was a valid lien upon the property at the time the execution was levied, and that it was superior to the claim of the appellant under the mortgage. That this just legal right has been prevented from being enforced until it is impaired or lost, and that, by the litigation which has been commenced and carried on by -the appellant. And when he has failed to establish the claim to protection, upon which the litigation was commenced, and it appears that he has improperly prevented the judgment creditor from enforcing his execution, he cannot be permitted to take advantage of the accidental circumstance occasioned by himself, that the lien of the judgment is lost. The loss of the lien has been occasioned by ■himself, against the will of the appellee, and without any fault on his part; and upon no principle of equity could he be held to lose his right, to the benefit of the appellant.

If the lien be lost, the appellant should not be permitted to take advantage of it; but, so far as the equity of the case depends upon this point, the injunction was properly dissolved, and the appellee left to his remedy upon the injunction bond for the injury which he had thereby sustained, and in consequence of the improper issuance of the injunction. This case is much stronger against the appellant than that of Sugg v. Thrasher, decided at the last term.

Upon the second point, it appears by the exhibit of the original judgment, filed as a part of the record, that the suit was brought against Young, as principal, and Berry and others as sureties, but the judgment was rendered against all the defendants, as joint makers of the note sued upon.

It is now insisted, that the execution could not be enforced against the surety without an affidavit being first made, and filed among the papers of the cause, that the principal was insolvent; and it is said that this case is embraced in the provisions of the Act of 1837. Hutch. Code, 853.

We do not think this position tenable. The Act of 1837 had reference to suits against makers and drawers of promissory notes and bills of exchange, and indorsers thereof, and to sureties on forthcoming bonds; in all of which the order and character of the liability appeared, either by an entry required by that Act to be made upon the execution, or by the execution itself, which showed whether a party was principal or surety. In such cases, that statute required that before the sheriff should proceed to levy upon the property of an indorser or surety, there should be an affidavit filed among the papers of the cause, stating the insolvency of the principal or maker. But it has been settled by this court, that that act does not apply to joint makers of promissory notes, against whom a joint judgment is rendered. Walker v. Gilbert, 13 S. & M. 693; and that, in order to render such an affidavit necessary, the surety should first make his affidavit of the fact of his suretyship. We think it clear, that when the judgment is a joint one against several defendants, the case falls under the provisions of the Act of 1822. Hutch. Code, 558, § 47. But if the execution be against makers, drawers and indorsers, under the Act of 1837, when the relative liabilities of the parties are required to be stated on tbe execution, or if tbe fact of suretyship appear by tbe face of tbe execution, as upon a forthcoming bond, ■ in such case there is a necessity for an affidavit, in order to authorize the sheriff to proceed against the property of the indorser or surety.

But it is clear, that this case, being a judgment against several joint makers of the promissory note, comes within the provision of the Act of 1822, and not within the Act of 1837. And, although the judgment was in fact against principal and sureties, there was no law authorizing the clerk to make an entry of that fact upon the execution, and nothing by which the sheriff could properly take notice of the relations of the defendants in the judgment. It was, therefore, bound to proceed upon the execution as against several defendants, equally and jointly liable, and to levy upon the property of any or all of them.

We think that the chancellor acted properly in dissolving the injunction — and the decree is affirmed.