Chancellor.
This is a bill to foreclose a mortgage, given by one Jacob B. Wannack, now deceased, to the complainant, dated the 8th of April, 1836, conveying certain lands in the county of Yazoo, by way of indemnity, against the liability which the complainant had incurred, as the accommodation indorser of War-mack, on a certain bill of exchange. The bill alleges, and the agreement of counsel admits, that the bill of exchange was taken up and paid by the complainant; and thus his right to a foreclosure, as against the mortgagor, became complete and perfect. The defendants, however, set up claim to the mortgage premises, as purchasers, under a judgment rendered against the mortgagor, after the date of the mortgage, but before the same was recorded. By the statutes of this State, a judgment is a lien upon the property, both real and personal of the defendant, from its date ; but a mortgage takes effect only, as against creditors, from the date of its registration. The judgment, under which the defendants claim, being of older date than the registration of the mortgage, must of course overreach it, unless by the subsequent proceedings under that judgment its lien became extinguished and discharged. It [445] appears that an execution of fieri facias, of older date than the one under which the defendants purchased, had been sued out and levied upon personal property, sufficient to satisfy the amount of the judgment. A forthcoming bond was thereupon given, which was afterwards returned “ forfeited,” according to the provisions of the statute upon that subject. An execution issued upon this bond, which was superseded ; and at a subsequent terra of the Court, from which it issued, both the execution and bond were quashed and set aside. A new execution was then issued on the original judgments, under which the defendants purchased the land in controversy. Whether the prior proceedings had the effect of discharging the lien of the judgment, or of restoring it to its original vigor, is the main point for decision. I much doubt whether the order of the Circuit Court, quashing the forthcoming bond, is not to be regarded as a mere nullity. The term of the Court at which the bond became a judgment, by operation of the statute, having elapsed, that Court had not, I apprehend, any more power to revise or set aside that judgment, than it would have had to set aside its own judgment, formally rendered at a preceding term. This is the view which I infer the Supreme Court took of the question, in the case of Wanser v. Barker (4 How. Rep. 363), when it declared that a motion to quash a forthcoming bond could not be entertained, after the term at which it became forfeited had elapsed. If then the order of the Circuit Court, in quashing the bond is void, as being coram non judice, the result is, that that bond is still in force ; and according to the uniform decisions in this State, it operated an extinguishment of the original judgment, from the moment the forfeiture took place ; and, as a consequence, gave priority to the mortgage, which was registered before the date of such forfeiture. But whether this view of the case be correct or not, still I apprehend that the original judgment itself must, in law, be regarded as satisfied, at the time of the sale under it to the defendants. A levy upon personal property, sufficient to satisfy the judgment, appears to have been made on a prior execution, and a bond given for its delivery on the day of sale. If then it be true, as urged by the defendants, that this bond was rightfully qpashed as a mere nullity, the case would stand as though no such [446] bond bad ever been given, leaving the levy under the execution .in full force, and the property liable to be seized and sold under a venditioni exponas. The levy of an execution is not discharged even by taking a regular statutory bond, as is evidenced by the very terms and conditions of such bond. The levy continues in force until the bond is forfeited, and has “ the force and effect of a judgment ; ” and if an irregular bond, or one not in conformity with the statute, be taken, it is clear that it could never have “ the force and effect of a judgment,” and therefore that the event could never happen, upon which the levy becomes discharged. In such case, the plaintiff in the original judgment would have a right to regard the levy as still subsisting, and to call for a venditioni exponas to enforce it. The sheriff has no authority to take any other bond, than that prescribed by the statute, and if he does, the plaintiff in execution is not bound by it. A levy once made, must remain in force, until legally discharged ; an illegal bond could not have that effect. From this view of the case, it appears that at the time when the mortgage was registered, and at the time when the defendants purchased the land, under the judgment against the mortgagor, there was still subsisting and undisposed of, a prior levy on sufficient personal property, to satisfy that judgment. This levy, upon well settled and familiar principles of law, operated an extinguishment of the judgment. From the moment it was made, the general lien of the judgment ceased to operate upon the other property of the defendant in the execution, and attached specifically upon the property levied on. (Ex parte Lawrence, 4 Cow. R. 417.)
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Chancellor.
This is a bill to foreclose a mortgage, given by one Jacob B. Wannack, now deceased, to the complainant, dated the 8th of April, 1836, conveying certain lands in the county of Yazoo, by way of indemnity, against the liability which the complainant had incurred, as the accommodation indorser of War-mack, on a certain bill of exchange. The bill alleges, and the agreement of counsel admits, that the bill of exchange was taken up and paid by the complainant; and thus his right to a foreclosure, as against the mortgagor, became complete and perfect. The defendants, however, set up claim to the mortgage premises, as purchasers, under a judgment rendered against the mortgagor, after the date of the mortgage, but before the same was recorded. By the statutes of this State, a judgment is a lien upon the property, both real and personal of the defendant, from its date ; but a mortgage takes effect only, as against creditors, from the date of its registration. The judgment, under which the defendants claim, being of older date than the registration of the mortgage, must of course overreach it, unless by the subsequent proceedings under that judgment its lien became extinguished and discharged. It [445] appears that an execution of fieri facias, of older date than the one under which the defendants purchased, had been sued out and levied upon personal property, sufficient to satisfy the amount of the judgment. A forthcoming bond was thereupon given, which was afterwards returned “ forfeited,” according to the provisions of the statute upon that subject. An execution issued upon this bond, which was superseded ; and at a subsequent terra of the Court, from which it issued, both the execution and bond were quashed and set aside. A new execution was then issued on the original judgments, under which the defendants purchased the land in controversy. Whether the prior proceedings had the effect of discharging the lien of the judgment, or of restoring it to its original vigor, is the main point for decision. I much doubt whether the order of the Circuit Court, quashing the forthcoming bond, is not to be regarded as a mere nullity. The term of the Court at which the bond became a judgment, by operation of the statute, having elapsed, that Court had not, I apprehend, any more power to revise or set aside that judgment, than it would have had to set aside its own judgment, formally rendered at a preceding term. This is the view which I infer the Supreme Court took of the question, in the case of Wanser v. Barker (4 How. Rep. 363), when it declared that a motion to quash a forthcoming bond could not be entertained, after the term at which it became forfeited had elapsed. If then the order of the Circuit Court, in quashing the bond is void, as being coram non judice, the result is, that that bond is still in force ; and according to the uniform decisions in this State, it operated an extinguishment of the original judgment, from the moment the forfeiture took place ; and, as a consequence, gave priority to the mortgage, which was registered before the date of such forfeiture. But whether this view of the case be correct or not, still I apprehend that the original judgment itself must, in law, be regarded as satisfied, at the time of the sale under it to the defendants. A levy upon personal property, sufficient to satisfy the judgment, appears to have been made on a prior execution, and a bond given for its delivery on the day of sale. If then it be true, as urged by the defendants, that this bond was rightfully qpashed as a mere nullity, the case would stand as though no such [446] bond bad ever been given, leaving the levy under the execution .in full force, and the property liable to be seized and sold under a venditioni exponas. The levy of an execution is not discharged even by taking a regular statutory bond, as is evidenced by the very terms and conditions of such bond. The levy continues in force until the bond is forfeited, and has “ the force and effect of a judgment ; ” and if an irregular bond, or one not in conformity with the statute, be taken, it is clear that it could never have “ the force and effect of a judgment,” and therefore that the event could never happen, upon which the levy becomes discharged. In such case, the plaintiff in the original judgment would have a right to regard the levy as still subsisting, and to call for a venditioni exponas to enforce it. The sheriff has no authority to take any other bond, than that prescribed by the statute, and if he does, the plaintiff in execution is not bound by it. A levy once made, must remain in force, until legally discharged ; an illegal bond could not have that effect. From this view of the case, it appears that at the time when the mortgage was registered, and at the time when the defendants purchased the land, under the judgment against the mortgagor, there was still subsisting and undisposed of, a prior levy on sufficient personal property, to satisfy that judgment. This levy, upon well settled and familiar principles of law, operated an extinguishment of the judgment. From the moment it was made, the general lien of the judgment ceased to operate upon the other property of the defendant in the execution, and attached specifically upon the property levied on. (Ex parte Lawrence, 4 Cow. R. 417.)
The case of Jackson v. Bowen and Neff (7 Cow. R. 13) is strikingly analogous in its features to the one before me. It was a contest between a purchaser under a mortgage with power of sale, and a purchaser under a judgment against the mortgagor. It was urged that the private sale under the mortgage was void, because that form of foreclosure is not authorized by the laws of New York, where there is a junior incumbrance, and that the judgment under which the plaintiff claimed was in force at the time of such sale. It appeared, however, that at the time of the sale under the mortgage, a levy had been made under the judgment on personal property sufficient to discharge it; but the plaintiff in execution [447] had ordered it to be returned unsatisfied, and afterwards sued out another, and levied it on, and sold the land, previously sold under the mortgage. The Court held, that no title passed under this sale; that the prior levy was an extinguishment of the'judgmerit; and that it ceased to be a lien upon the land from the moment such levy was made. The principles of that case are, I think, conclusive upon the present question. It is clear that the defendants, in order to support their title, must show that the judgment, under which they derive it, retained a lien upon the land at the date of their purchase, older than the lien created by the complainant’s mortgage ; because, at the time of the sale, they had full notice of that mortgage, and can only protect themselves against it, by showing that the prior lien of the judgment was still subsisting. It is indeed in this particular, a mere contest about the priority of liens ; and not a question of whether a purchaser at execution sale is effected by any irregularity in the proceedings. This view of the case would seem to supersede the necessity of noticing the other ground of defence; because, if the defendants acquired no title under their purchase, they have no right as mere strangers, without interest in the matter, to question the validity of the complainant’s mortgage, upon the score of ambiguity, or uncertainty in the description of the mortgage property. If, however, they were at liberty to raise that question, I am satisfied, although the property is somewhat generally and indefinitely described, that the vagueness in this particular, is not so great as to render the mortgage absolutely void for uncertainty. It would, therefore, resolve itself into a mere question, whether the description is sufficient to convey notice to a subsequent purchaser of the identity of the property intended to be conveyed ; because, whether the judgment, through which the defendants derive title, takes precedence in date to the mortgage or not, yet, if the judgment was in force, and the mortgage gives no cognizable description of the property, the defendants would be entitled to protection against it, as bona fide purchasers without notice. Is the description sufficiently certain to warn future purchasers as to the identity and locality of the land intended to be conveyed ? The land is described as “ lying and being in the county of Yazoo, and State of Mississippi, situate [448] on Short Creek, about three miles from Manchester, in township eleven, range two, west; in sections eight, nine, ten, and fifteen, containing about, two thousand acres.
I cannot doubt that this description is sufficient to point the inquirer to the precise locality of the land. The county, township, range, watercourse, and sections on and in which it is situated, are precisely and particularly described. There is no attempt to show that the mortgagor owned more land in that township, and in those sections, than the two thousand acres conveyed to the complainant. A reference to the register of deeds, or the land office, would readily have shown what parts of those sections were covered by the conveyance. The rule is, that although the description may not be certain in itself, yet if it points to anything which will give exact information of the locality and boundary of the premises, it is sufficient to charge a subsequent purchaser with notice. In the late case of Malden and Parker v. Hughes, I had occasion to examine this question, and the principles there laid down are applicable to this case. One of the most striking features about this case, is the fact, that, under an execution calling for but one hundred and sixty dollars, and the accruing interest, a levy and sale was made of nearly sixteen hundred acres of land, consisting of various subdivisions. This levy was excessive, as is shown by the fact, that the land brought more money than was called for by the execution. In the case of Stover v. Boswell's heirs (3 Dana’s Rep. 235), the Supreme Court of Kentucky held, that a sheriff, who levies upon and sells more land than is necessary to satisfy the execution, exceeds his authority, and that such a sale is void ; especially where the land was susceptible of division. Without giving any decided opinion upon this point, I am satisfied, upon the other grounds which I have examined, that the complainant is entitled to enforce his mortgage against the land, in opposition to the claim of the defendants.
I shall, accordingly, direct the case to be referred, to ascertain the amount due on the mortgage ; and, on the coming in of the report, a decree of foreclosure may be had.