Pearce v. DeGraffenreid , 110 Miss. 465 ( 1915 )

Stevens, J.,

delivered the opinion of the court.

Appellant, W. W. Pearce, was claimant in the circuit court of Lauderdale county of certain machinery levied on under an execution issued upon an enrolled judgment recovered and owned by appellee against one J. P. Spar-ling. Judgment was rendered against W. W. Pearce and the sureties on his claimant’s bond, ánd from this judgment the claimant and his said sureties appeal.

In July, 1911, Mr. Pearce, the owner, sold the property in question to J. P. Sparling, and took a deed of trust to secure five hundred dollars of the purchase money. This trust deed was duly recorded. Mr. Sparling failed to pay the purchase price, and thereafter W. 0. Sams, as substituted trustee in said deed of trust, demanded possession of the property, and, failing to obtain possession, instituted an action of replevin to recover possession and to foreclose the trust deed. The writ of replevin was duly issued and levied April 26,1912; and the sheriff, after making his return on the writ, proceeded to advertise the property for sale under and by virtue of section 4229, Code of 1906, claiming it was necessary to employ a watchman to guard and protect the property, and that the property levied on was too expensive to keep. After this property was levied on under the writ of replevin, execution was issued on the enrolled judgment of appellee against J. P. Sparling, and was placed in the hands of the sheriff May 20, 1912. The property was sold on May 25, 1912, under the provisions of section 4229 aforesaid, and appellee was the highest and best bidder. He failed to pay the bid, however, and the property was readvertised for sale and resold June 10, 1912, under the statute mentioned, and, at the second sale, appellant bid in the property, and the same was struck off to and delivered to him. Appellant thereupon filed his claimant’s affidavit in the execution proceedings, and gave bond with his coappellants as sureties. Issue was thereafter made and joined and the cause proceeded to trial, resulting adversely to appellant.

The first assignment of error submits that the court below erred in granting a peremptory instruction to appellee and in refusing a peremptory instruction in favor of appellant. Appellee contends that the description in the deed of trust, held by appellant against J. P. Spar-ling, is void for uncertainty, and also that W. C. Sams, plaintiff in replevin, was not legally appointed as substituted trustee. The replevin suit was, however, prosecuted to judgment; and the plaintiff in that suit recovered a judgment by default against J. P. Sparling. It. is undisputed that appellant bought and paid for the property in question at the sale made by the sheriff undér section 4229 of the Code of 1906 in the replevin suit...

Under our construction of the statute in question, appellant acquired a good title to the property at the sale made by the sheriff under the statute. By the terms of this statute, the money realized by the sheriff at the public sale stood, after the sale,' in lieu of the property.. The writ of replevin was lawfully issued, and the property- in question lawfully taken in possession under the writ of replevin; and appellee is in no position to question the validity of appellant’s judgment in the replevin suit. The sheriff, being lawfully in possession of the property,, was by the express terms of section 4229 empowered to make sale of it; and by the further expressed provisions of the statute, ‘‘the proceeds of the sale, after payment of proper expenses, shall be .in lieu of the thing; sold.” The statute contemplates, of course, that only one sale should be made; and, unless the purchaser takes, the property freed of and not subject to the execution issued and served subsequently to the issuance and service of the writ of replevin, then a valid sale could not, under such circumstances, be made at all under the statute, and the beneficent provisions of the statute in such ease could not be availed of. Appellant, in our judgment, took a good title at the sale in question; and the peremptory instruction, instead of being in appellee’s fayor, should have been in favor of appellant.

Let the judgment of the court below be reversed, and judgment entered for appellant.

Reversed.