Davis v. Hamilton ( 1874 )

Peyton, C. J.,

delivered the opinion of the court:

This is an appeal from a decree of the- chancery court of Hinds ■county, subjecting certain lands in said county to the payment of the consideration money under a lien reserved in the deed of conveyance. The facts of the case are substantially as follows: On the 22d day of May, 1860, one Charles D. Hamilton sold and conveyed to John Evans a certain tract of land situated as above stated in said county of Hinds for the sum of $21,079.60, and to secure the payment of the purchase money, the said Evans executed and delivered to said Hamilton his four promissory notes, bearing even date with the deed of conveyance of said land; the first lor $10,539.80, payable on the 1st day of January, 1861; the second for $3,513.27, payable on the 1st day of January, 1862 ; the third and fourth for like sums, payable on the 1st day of January in 1863 and 1864. These notes are described in the deed of conveyance, and therein expressly made a lien upon the lands thereby conveyed. The deed was duly acknowledged and filed in the proper office of said county for record on the 20th day of June, 1860, and recorded on the 25th day of the same month.

On the 25th day of March, 1861, the said John Evans, for a different consideration, made and delivered to the said Charles D. Hamilton his certain other promissory note for the sum of $928.75, payable on the 1st day of January, 1862. Upon this note the said Hamilton obtained a judgment at the November term, 1866, of the circuit court of Hinds county, against the said Evans, for the sum of $1,476. Upon this judgment an execution was issued and levied upon the land conveyed as aforesaid, which was struck off at the sheriff’s sale to Joseph E. Davis, in the name and behalf of his wife, Amanda E. Davis, as her agent, at the sum of $910, on the first Monday of June, 1867, being the return day of said execution. This bid the said'Amanda E. Davis, by her said agent, declined to pay, on the ground that the land was subject to the vendor’s lien for the unpaid purchase money. After the return of the execution, on the 16th day of August, 1867, the amount of said bid was paid by the said Joseph E. Davis for his wife, to the sheriff, who then executed to Mrs. Davis a deed for said land.

The notes given for said land remaining unpaid, the said Charles D. Hamilton filed his llill in the chancery court of the said county of Hinds, in 1867, against the said John Evans, Joseph E. Davis and Amaüda E. Davis, to enforce the lien expressly reserved in his deed, and to subject the land to the payment of the unpaid purchase money, praying that unless the amount found to be due, the complainant be paid by a short day, the said land may be decreed to be sold to pay the same, or so much as may be necessery for that purpose.

To the bill of complaint the defendants, Davis and wife, demurred, and the demurrer was overruled by the court, and leave to answer was granted to said defendants, who answered and made their answer a cross bill, praying that the complainant may be forever barred and precluded from enforcing his vendor’s lien as prayed for in his bill, and that the same may be dismissed.

The death of said complainant, Hamilton, having been suggested, the suit was revived in the name of Lizzie Hamilton as administratrix of his "estate, who in her answer to the cross bill denies all knowledge of the facts therein stated, and prays for the enforcement of the lien, as sought in the prayer of the original bill.

John Evans having failed to answer the bill, a pro confesso was taken as to him, and the cause having been heard on the bill, pro confesso, cross bill, answers, exhibits and testimony, the court decreed that unless the sum of money due the complainant for the unpaid purchase money on said land, be paid within thirty days from the date of the decree, the land be sold, and out of the proceeds of the sale, that the sum paid by Amanda E. Davis on the purchase of said land at the sheriff’s sale, with interest thereon at the rate of ten per cent, per annum from the time of payment to the sheriff, until payment to her, be first paid to her, and that the balance of the proceeds of said sale be applied to the payment of the amount found due to the complainant, or so much thereof as may be necessary to satisfy the same, and costs of suit, and that the conveyance of said land made by the sheriff to said Amanda E. Davis, on the 16th day of August, 1867, shall be and stand from the time of such payment annulled and held for naught. And hence the cause comes to this court on the part of the defendants, Joseph E. Davis and Amanda E., his wife, who assign for error:

1. That the court below erred in overruling the demurrer of Davis and wife to the bill of complaint.

2. That the court below erred on final hearing in granting any relief to complainant.

8. That the court below erred in decreeing the sheriff’s deed to Mrs. Davis, one of the appellants, to be annulled and held for naught upon the contingency therein stated.

In support of the first assignment of error the counsel for the appellants insist that the bill of complaint was fatally defective in not averring that Mrs. Davis had notice of the vendor’s lien previous to her purchase under the execution, This objection to the bill would have been good, bad Mrs. Davis been a bona fide purchaser. But it has been held by our predecessors in the case of Kelly v. Mills, 41 Miss., 280, that neither judgment creditors nor purchasers at sheriff’s sale, deriving rights by operation of law, are to be regarded as purchasers for a valuable consideration, but as mere volunteers in contemplation of a court of equity. There was no error, therefore, in overruling the demurrer.

The second assignment of error calls in question the right of the vendor to enforce his lien upon the land conveyed to Evans for the unpaid purchase money. Even had there been no express lien reserved in the deed of conveyance to Evans, Mrs. Davis would have been a purchaser of the land subject to the implied lien for the purchase money. If this be so, a multo fortiori, must the express lien reserved in the deed, which fixes Mrs. Davis with notice, prevail against her claim derived through the sheriff’s deed. The lien upon the land conveyed being expressly reserved in the deed, which was duly recorded, was clearly an equitable mortgage, of which every one is bound to take notice. Stratton v. Gold, 40 Miss., 781. Mrs. Davis bought nothing at the sheriff’s sale but an equity of redemption. She took the land, subject to the lien, for the unpaid purchase money. And Hamilton had an undoubted right to enforce his lien in a court of equity by subjecting the lands to the payment of the purchase money. Hamilton had a perfect right to sue in a court of law upon the note not secured by any lien on the land, before he filed his bill to enforce tbe lien on tbe land conveyed for the payment of the notes secured, and his having done so is no fraud on Mrs. Davis, nor does it furnish any ground to infer fraud.

The case of Jackson v. Hall, 10 John., 481, so much relied on by counsel on both sides of thi3 case, so far as it. authorizes a creditor, whose debt is secured by mortgage, to purchase the mortgage property under an execution emanating from a judgment at law, upon the debt thus secured, is not recognized as good law in this state. In this state tbe equity of redemption in property, mortgaged or conveyed by deed of trust, is not subject to sale under an execution at law, emanating from a judgment rendered for tbe debt secured by the mortgage or deed of trust. Carpenter v. Bowen, 42 Miss., 52.

We think there is no error in the decree of the court so far as it directs the sale of the land for the payment of the unpaid purchase money and interest.

With respect to the third assignment of error, the counsel for the plaintiffs in error contend that Mrs. Davis had a right to retain her deed and redeem the land by paying the purchase money. This would have been so had she perfected her purchase by paying her bid and taking a deed from the sheriff before the expiration of the return day of the execution. In that event she would have been a purchaser of the equity of redemption, and have taken the land subject to tbe lien, with the right to redeem, and would hold the property under the sheriff’s deed. The equity of redemption is'the excess of the value of the property conveyed, over and and above the debt secured by the mortgage, and the purchaser thereof stands in the shoes of the debtor, and takes the property subject to the incumbrance, which must be paid off and discharged, in order to perfect the title to the same. And had Mrs. Davis, as a purchaser at the sheriff’s sale, suffered the land to be sold under a decree of foreclosure, she would only have been entitled to what remained of the proceeds of the sale after the payment of the debt secured, and if there was no excess, she got nothing. Caveat emptor is a maxim applicable to all judicial sales.

Whether Mrs. Davis acquired any title under the sheriff’s deed, is a question which we deem it unnecessary in this case to decide. It seems to be conceded, on both sides, that the land is not worth the amount of money remaining due as an incumbrance] upon it. and therefore there could be no excess upon the sale under the decree. But if Mrs. Davis acquired no title under the sheriff’s deed, the money paid by ber to the-sheriff, which was received by Hamilton’s attorney at law, and applied to the payment of his debt, created a lien in equity on the land in her favor for reimbursement, even had she acquired a title to the property by the sheriff’s deed, and therefore been entitled to redeem. It will be seen by reference to the decree that she is not deprived of that, right. The decree gives thirty days for redemption, and that the deed to Mrs. Davis shall be annulled only from, the time of the reimbursement to ber of the money received by the sheriff, and appropriated as aforesaid to Hamilton’s use.

The decree in any aspect of the case in which it can be viewed is most favorable to Mrs. Davis, and if there be any error, it is such as she has no right to complain of.

The decree will be affirmed.