Stevens v. Magee ( 1902 )

Terral, J.,

delivered the opinion of the court.

On the 26th day of June, 1901, Mrs. Kate Stockton, who owned the premises here in question, and had owned them for about á year preceding, sold and conveyed them to Berta Stevens by written conveyance, which was duly executed, but the conveyance was not filed in the office of the chancery clerk at Jackson until the 7th day of October, 1901. The premises consisted of three single room houses and one double room house, then occupied by colored tenants of Stockton. On September 12, 1901, W. J. Magee, before a justice of the peace of Warren county, who had jurisdiction of the suit, recovered a judgment against Kate Stockton for $214.04, an abstract of which was filed in the office of circuit clerk of the first district of Hinds county (the Jackson district), and was duly enrolled upon the judgment roll of said office on the 14th day of September, 1901. An execution upon this judgment was soon thereafter levied upon the premises, and the sale thereof about to be had thereunder, when this injunction suit was brought by Stevens to prevent a sale thereof. From a dissolution of the injunction, this appeal is had.

The question to be determined is, which has priority of right —the conveyance to Stevens, or the lien of the judgment of Magee ? The bill of appellant required of Magee an answer under oath, and, so answering* he denied any knowledge of the conveyance of the premises to appellant. Complainant also alleged that the several houses situated upon the premises (four in number) had been in her possession since her purchase of them, and that there had been a change of tenants of these premises since she bought them of Mrs. Stockton. These allegations were denied by Magee. A change of the tenants of any one of the four houses after June 26th, and before September 14, 1901, is not proven. If, upon the slight evidence on that point contained in the record, it became a question of importance, the decision of it by the chancellor against the contention of appellant must be concurred in, as the evidence preponderated against her. It is a rule that a chancellor’s decision of the facts of a case is to be sustained unless it appears to be manifestly wrong. Mr. W. T. Stevens, the agent of appellant in the purchase of the premises, stated that he could not swear to any change of tenants^ and he also stated that he could not swear that any of the tenants on the premises knew that the land and buildings had been purchased of Mrs. Stockton by appellant.

The only remaining question appears to us to be determined by the decision of this court in Loughridge v. Bowland, 52 Miss., 546. It is there held that, in order to constitute notice of a sale of premises by a possession of them by tenants, there must be such a change of possession as to arrest attention, and to put creditors and subsequent purchasers upon inquiry. The case there differed from the case here only in the fact that Magee is pursuing a lien acquired by the enrollment of his judgment, and in the case in 52 Miss., the creditor was pursuing a lien by the levy of an attachment. The principle underlying the cases is the same. The Loughridge-Bowland case is vigorously attacked here as unsound. It was, however, decided by this court when composed of three very distinguished judges. It is indirectly supported by many authorities. Dey v. Dunham, 2 Johns. Ch. 182, 189; 3 Mass., 575; McMechan v. Griffing, 3 Pick. 149, 15 Am. Dec. 198. We do not feel at liberty to overrule it.

We sympathize with the purchaser in her loss, in not filing her conveyance for record, but diligent creditors cannot be devested of their legal rights.

Affirmed.