Dozier v. Lewis , 27 Miss. 679 ( 1854 )

Mr. Justice Handy

delivered the opinion of the court.

The substance of the bill in this case is, that a judgment was rendered in the circuit court of Jasper county, at May term, 1839, against Pierson Lewis, principal, and Dozier, his surety, on which Dozier executed a forthcoming bond, which was forfeited on the 11th of May, 1840, and afterwards paid the judgment; that after the judgment,- and in the summer of 1839, Lewis had certain slaves and other property in that county, but for some reason not known the sheriff refused to levy upon them at Dozier’s request; that some time in the summer of 1839 Lewis fraudulently ran off the slaves and other property to Adams county, for the purpose of subjecting Dozier to the payment of this judgment; that Lane, being the holder of a debt then in suit against Lewis and one Wyatt, to whom the property belonged as partners, and being aware of Lewis’s fraudulent intent, and intending to aid therein, purchased the slaves from Lewis in satisfaction of his debt to the amount of their value, and removed them from this State and sold them. Lewis having no other property or means to reimburse Dozier, he filed this bill, claiming to be subrogated to the rights and lien of the judgment which he paid, and for an account and decree against Lane and one Collins, who is alleged to have participated in the alleged fraud, for the value of the slaves, &c. The answers deny all fraud and combination, and allege that the slaves were run off to Adams county by "Wyatt, and arrested by Lewis and Collins, and afterwards sold to Lane in discharge of the debt he held against Lewis and Wyatt. The proof does not materially change the case as presented by the pleadings.

Upon the hearing, the chancellor dismissed the bill, and this appeal was thereupon taken.

There can be no question but that the surety paying the debt of his principal is entitled to the benefit of all the security and the lien of the creditor. But it is equally clear that he cannot extend the lien or security beyond their effect and operation in the hands of the creditor. He is subrogated to the rights of the creditor. What right, then, had the creditor in virtue of the judgment against Lewis and Dozier, so far as the property of Lewis was affected ?

Conceding the lien of the judgment, as it originally stood, to be in full force when this bill was filed, and to have had precedence over the purchase of the slaves by Lane, what was the nature and extent of that lien ? It was a general, not a specific lien. “ It is not a property in the thing itself, nor does it constitute a right of action for the thing. It more properly constitutes a charge upon the thing.” Story, Eq. § 1215. It is neither a jus in re, nor a jus ad re'm. 4 Kent’s Com. It confers a mere right of satisfaction out of any property of the defendant then held or subsequently acquired, which, under our laws, operated as a charge upon the property from, its date, and empowered the creditor to have the property taken in execution. Any one purchasing property in this condition, of course holds it subject to the right of the creditor to subject it to his judgment. But this right depends upon the fact that the property shall be actually taken in execution; and if that is never done, the creditor’s claim is nothing more than a debt of record, and a purchaser for a valuable consideration would be entitled to hold property purchased from the defendant subsequent to the date of the judgment.

There is no soundness in the position, that such a purchaser is to be held as a trustee, and accountable for the value of the property. The property is not bound as trust property, nor has the judgment creditor any claim whatever upon it in that point of view; nor is it even subject absolutely to the judgment, but only on condition that it is seized in execution, for the judgment may be otherwise discharged. ’ It is no more subject as a trust fund to the payment of the judgment, than it is to the payment of any other just debt of the defendant not in the form of a judgment; and in a certain sense, all the property of a debtor is regarded as subject, as a trust fund, to the payment of his debts. But this has reference to the obligation and duty of the debtor in good conscience, and not to the power of the creditor to set up a trust upon it, and thereby prevent its alienation. Until it becomes bound by legal process or conveyance, it is not subject to the trust so as to prevent the right of disposition. The rule insisted upon in behalf of the appellant has no application to a case of this kind, but applies only to cases of direct, technical trust, and to parties who are special trustees, and hold property purely in trust. Story, Eq. § 1257. And we are not aware that it has ever been held that a party purchasing property for a valuable consideration from a defendant against whom there was a judgment operating as a general lien, is accountable to the judgment creditor for the value of the property. No authority has been brought to our notice sanctioning such a position, nor do we perceive upon what just principle it can be maintained.

Here, then, is no proof of fraud, but on the contrary it is shown that the purchaser gave a valuable consideration for the slaves. If-he purchased them intending to remove them beyond the operation of the judgment lien, but yet paid a valuable consideration for them, he would not be responsible to the judgment creditor for their value.

But there is another ground upon which this bill could not be maintained. The purchase of Lane was made in the summer of 1839. The lien of the judgment set up by the appellant, though originally existing in May, 1839, was destroyed by the forfeiture of the forthcoming bond, which took place in May, 1840. The lien of the judgment was therefore postponed to the purchase of Lane; and as the appellant can only claim the benefit of the lien of the judgment, it is manifest that he cannot set it up to defeat the purchase of Lane, which has precedence over it.

The decree of the chancellor is affirmed.