Hiller v. Lamkin , 54 Miss. 14 ( 1876 )

Simrall, C. J.,

delivered the opinion of the court.

The land in controversy was the property of the late W. F. Cain. The plaintiffs in error claim that the title has vested in them, by virtue of the sale under the judgment against Cain. Mrs. Lamkin, the defendant in error, insists that she has acquired the title, under the foreclosure decree, and the purchase at that sale. Admitting that the judgment is older than the mortgage under which her title accrued, she asserts a better right, because the sale under the execution to Hiller is void, ■the judgment creditor not having executed the prescribed bond before suing out the process.

An attachment suit was brought against one John C. Burden, as a non-resident; garnishment process was served on Gain, who answered, admitting indebtedness. A final judgment, on proof of publication, was rendered against Burden, and judgment was entered up against Cain on his answer. Several years after the rendition of this judgment against Cain, an ordin ary fieri faoias was issued, and was levied on the land, which was sold, Hiller (who was also assignee of the judgment) becoming the purchaser. After his purchase, he entered upon the land ; when Mrs. Lamldn brought ejectment to recover the possession.

The questions of law are two : First, Was the sale to Hiller void, if the bond prescribed in such case was not given ? Second, Do the agreed facts warrant the inference that the bond was given ?

Sect. 1479, Code 1871, requires, where the judgment goes by default, upon proof of publication, a bond to be given by the creditor, before any sale shall be made or execution issued against any garnishee, conditioned that if the defendant shall appear within a year and a day, and disprove the debt, then the plaintiff shall restore the money received towards the satisfaction of his demand, or so much thereof as shall be disproved or avoided; and any sale made without such bond being given shall be utterly void. This section is a copy of art. 23, p. 379, Code of 1857.

The bond must be made “ before any sale,” “ or execution issued against any garnishee.” The words plainly refer to two things: First, a “ sale,” which provides for a case where the officer has served the writ on property, and has, if personal effects, the property in possession, and when all that final process would or could do, would be to ascertain the value by sale. The language of the court in Oldham v. Ledbetter, 1 How. (Miss.), 43, 48, was, “ An attachment, being a proceeding in rem, operates by a levy, an assignment in law, of dioses in action and a transfer of chattels and lands to tire creditor.” Hence the court concluded that the sale is made “ to ascertain value.” Since a sale of property attached could be made by a special writ, the statute refers to such “ sales.” Second, The prohibition extends also to the issuance of execution against the garnishee. The effect of the statute is to susjrend. altogether any further steps being taken under the judgment against the absent debtor, and the judgment against the garnishee, until the bond has been executed. That result is completely attained when a sale of the property attached, and the issuance of execution against the garnishee, are prohibited. For it is only in the one mode or the other that it is possible to obtain satisfaction. The statute is mandatory, and declares that a sale made without giving the bond shall be “ utterly void.” The language is, “ any sale; ” that is, a sale either of the attached property, or under execution against the garnishee. We are constrained to think that the prohibition in the first clause of the section, to “ sell,” or to issue execution, and the denunciation in the last clause of a sale, where no bond is given, as being “ utterly void,” completely bar the creditor from any steps to secure satisfaction, until he has given bond. And the issuance of the execution and sale of the garnishee’s property would not pass the title. Such was the interpretation put on the act of 1822, in Oldham v. Ledbetter, ubi supra. The bond is an indemnity for the 'absent debtor, so that if his property is sold, or if his debtor is garnished and pays the judgment, he may be refunded whatever of the debt he shall, within the year and day, come into court and disprove and avoid. The purchaser, either of the attached property, or of the garnishee’s, sold under execution, shall not be disturbed or the property recovered back; but, in lieu of that, the debtor shall be reimbursed in money to the extent that he avoids the debt. The conclusion of the court in the case cited is .entirely correct, that “ the legislature intended, in all cases where either chattels or lands are to be sold, or money to be paid by the garnishee, bond with security should be required of the attaching creditor.”

We conclude, therefore, that the sale of Cain’s lands under tbe execution, against him as garnishee, is void, and passed no title to Hiller, unless the bond was given.

Can it be inferred from the agreed facts that a bond was executed ?

“ It is admitted that no bond . . . has been found in the papers, or any entry on the minutes of the court, of the approval of such bond by the court, and no evidence found that such a bond has been given.” Hiller, on his purchase, went into possession of the property, and was, at the date of the sale, assignee of the judgment. Judgment was rendered against Burden and Cain on March 5, 1866. Execution issued, returnable to the September Term, 1872, and the land in controversy was levied upon and sold.

Under the Code of 1857, the bond must have been approved by the court. Under the present code, the approval may be either by the court, or the clerk in vacation, and must “ be filed with the papers in the cause.” If the approval were by the court, we should naturally expect to find a memorial of it on the record, as the law intends that judicial acts of the court shall be noted on its minutes. But, by whomsoever approved, the legal depositary of the paper is the clerk of the court, and the place, the file of the papers in the cause. When examined, neither the minutes nor the file give any information. The agreed ease goes further than this, and states that “ no evidence found that such a bond has been given.” This sentence follows the recital that no entry was on the minutes, nor bond on file in the papers. Does it mean that after inquiry, at all probable sources of information, — as of Haynes and wife, the original creditors, of Hiller, their assignee, of the clerk of the court, and of the presiding judge, — no evidence or information could be obtained. If all that is within the scope of the admission, then the negative testimony is very strong that a bond was not given.

But Hiller was assignee of the judgment at the date of the sale. It does not appear when he became assignee; but it would have been competent for him, as the real creditor, to have given the bond. Since he declined to speak on the subject, it is fair to presume that he did not give the bond.

But it is said that it must be assumed that the clerk did his duty; and that, therefore, it must be presumed that he did not issue execution without a bond. It must be noted that the judgment was recovered in 1866, that the fieri facias, under which the sale was made, did not issue until 1872, and that the sale took place a few weeks afterwards. A bond given one day before the writ was sued out was just as good as one given at the date of the judgment. It is not shown that any other fieri facias had ever issued. The creditor would not be swift to incur such liability, until he was ready to make use of the final process.

We have been referred to the case of Voorhees v. Bank of the United States, 10 Pet. 449, which veiy thoroughly discusses the difference between void and voidable sales under judicial process. The statute under which that decision was made required an affidavit by the creditor; and, if not given, the fieri facias might be quashed. There was no provision in the statute, that, if the several acts were not done, the sale or other proceedings under the attachment should be void. The thirteenth section made the sale by the auditors, “ under the authority aforesaid,” binding and effectual, as if made by the defendant prior to service of attachment. The auditors were required to report to the court, when the sale would be confirmed. The learned Judge Baldwin, commenting on the several irregularities in the proceedings, concluded that they were sufficient to have procured a reversal of the judgment on error; but that, since the defendant rested under the judgment, they could not be set up to defeat the title of the purchaser under the judgment, especially since the reversal of a merely irregular and erroneous judgment would not affect the sale. Stress is laid on the absence from the statute of any declaration of voidness of sale, unless it was strictly complied with, and on the further fact, that when the court came to pass upon the report, “it rendered judgment on all the acts preceding the sale, affirming their validity in the same, as their judgment had affirmed the existence of a debt.” It was a direct adjudication that the order of sale was executed according to law. The doctrine of the case is to uphold the title of a purchaser who has bought under proceedings erroneous and reversable.

In our case there is no irregularity or error in the proceedings against the defendant to the attachment, or against Cain, the garnishee. The judgment against the latter was in all respects a personal recovery, as if begun by the ordinary summons. It operated, having been enrolled, as a lien on Cain’s property. But the precise objection is, that the statute imposes terms on the creditor, the non-observance of which renders any. sale of property which he may cause to be made utterly void. Under the law, as it was in 1866, the date of this judgment, and as it continued to be until October, 1871, the plaintiff must have a bond approved by the court before he could make a valid sale. If such bond had been given before Oct. 1, 1871, the records of the court should show it. After that date it might have been approved by the clerk; and such approval would be a matter in pais, to be proved as any other fact.

The case of Cooper v. Reynolds, 10 Wall. 308, affirms the general proposition, that when a judgment of a court is offered in evidence, in a collateral suit, its validity cannot be questioned for such errors merely as do not extend to and affect its jurisdiction. In the case before us it has not been mooted that the judgment against Cain is invalid; but it is conceded to be perfectly regular and valid. The matter which is set up to defeat the sale is ex post facto the judgment.

The legislation of this State has some special features, perhaps not common to the laws of other States; and these features have given a direction to our decisions in apparent conflict with those elsewhere. Thus the statute, How. & Hutch, p. 549, § 13, declared every attachment issued without bond and affidavit ... to be illegal and void. From that it followed that the judgment against the garnishee, if the bond and affidavit were wanting, had no support. Ford v. Woodward, 2 S. & M. 260. The view was repudiated, that it would be presumed that the affidavit was made and bond given. The record must show the fact.

The law means that the bond shall be a substantial security for the debtor. If Burden had appeared in court within the time after the sale, and had avoided the debt, it would have been impossible for him to have sued upon a bond. Not being able to produce the bond, he would have been obliged to prove its existence, and who were sureties. Can it be said, on the case agreed, that he could have sustained his action ?

After careful consideration of the questions raised, we see no error. Judgment affirmed.