Foote-Patrick Co. v. Merkle ( 1917 )

Smith, C. J.,

delivered the opinion of the court.

This suit was instituted by appellee to foreclose a vendor’s lien upon certain land sold by him to W. F. Ware and afterwards purchased by Foote-Patrick Company at a sale under execution issued on a judgment rendered-by a justice of the peace against Ware.. The judgment was enrolled in the office of the circuit clerk, and the execution issued by him returnable to the justice of the peace. No transcript of the proceedings' had before the justice of the peace in the suit in which the judgment against Ware was rendered was filed with the' deed executed by the sheriff to Foote-Patrick Company pursuant to the sale under execution and enrolled in the office of the chancery clerk. Ware failed to answer, and there was decree pro confes so against him; but FootePatrick Company filed an answer and cross-bill, resisting enforcement of the vendor’s lien for reasons not necessary to be here set out, for the court below, in granting the prayer of the original bill, correctly held that Foote-Patrick Company had acquired no title to the land under the execution sale. Appellant’s contention is that section 3997, Code. of 1906, Hemingway’s Code, section 3004, which provides that:

“The title to land sold under execution issued by a justice of the peace shall not be complete in the purchaser until he shall have obtained from the justice a certified transcript of the proceedings had before him in the suit, including a copy of the execution and the officer’s return on it, which shall be filed with the conveyance made by the officer in the chancery clerk’s office and recorded with the conveyance,” etc., has no application here, for the reason that the execution was not issued by a justice of the peace, but was issued by the circuit clerk upon the enrolled judgment. There is no merit in this contention, for the manifest purpose of the statute is to require the recording of such a transcript, etc., with any deed made pursuant to a sale under execution issued upon a judgment rendered by a justice of the peace. As stated in Hughston v. Cornish, 59 Miss. 372:

“The object is to place on record a permanent memorial of the judgment and execution, beyond the danger of loss from the many contingencies incident to the books and papers of justices of the peace, and also to have on record at the courthouse the evidence constituting a muniment of title to land.”

The record filed with the circuit clerk in order to obtain the enrollment of a judgment rendered by a justice of the peace does not meet this requirement, being in fact simply a mere abstract of the judgment itself.

Affirmed.