Flournoy v. Smith , 4 Miss. 62 ( 1838 )

Mr. Justice Prat

as to the motion.

If the proceedings and judgment upon this motion have validity at all, surely the interest of the plaintiff in error is directly affected by them; because he is to lose by them the advantages of his purchase. If, then, any person whose interest is affected by a judgment, may prosecute this writ, as the cases read at the bar clearly indicate, we are satisfied the present plaintiff in error is within the rule.

The motion must, therefore, be overruled, and the cause take its place on the docket for a final hearing. Dale ex. dem. v. Roosevelt, Cowen, 333.

The cause having been argued on its merits at a subsequent day of the term, Mr. Justice Trotter delivered the opinion of the court.

Upon a judgment which Graves W. Steel, who sued for the use of N. & J. Dick & Co., recorded against William F. Smith & Co., the defendants in error, in the circuit court of Madison county, an execution was issued and levied upon a tract of land as the property of the defendants.

At the sale, Samuel M. Flournoy, the plaintiff in error, became the purchaser.

At the October term of the circuit court of Madison county, for the year 1835, a motion was made by the defendants in error to set aside the sale thus made. The motion was sustained by the court, and this is the error relied on by the plaintiff. This proceeding is based upon nothing more than the return of the officer, endorsed upon the writ of fieri facias, of the levy and sale of the land. No process was issued to bring Flournoy into court, or to make him a party to the motion. This is not, however, the chief objection to the proceeding. Flournoy, upon the face of the record before the court, had a valid title to the land by the sheriff’s deed. His title could not be affected by any irregularity in the conduct of the officer who sold it. It was sufficient to protect his title that the sheriff had á legal writ of execution, founded on a judgment of a court of competent jurisdiction. If his purchase was invalid, it must, therefore, have been so on account of some matter in pais. It could be set aside on the ground of fraud, or any other fact which invalidated the contract. But it is conceived that the court below had no power-to determine these questions under a mere suggestion or motion. The constitutional law of this country provides, that no man shall be deprived of his life, liberty or property, except by due course of law. Is it according to any of the forms of proceeding, known to the common or statute law of this state, for the presiding judge in a court of common law to divest another of his title to the freehold in land, up911 a naked motion? A law which should confer such power, would be an infringement of the right of trial by jury, so cautiously guaranteed by our fundamental law to every citizen.

What is the effect of the judgment in this case? It is to dispossess Flournoy of the land in question. But how is the court to enforce its judgment? Can it order a writ of habere facias possessionem? Can it order the sheriff’s deed to Flournoy to be delivered up to be cancelled? Has the judgment that effect? ■Surely not. It can then have no effect whatever, and is, therefore, totally void.

For this reason, the judgment of the court below must be -reversed, and the motion dismissed.