Chisholm v. Andrews

57 Miss. 636

• Court: Mississippi Supreme Court
• Decided: April 15, 1880
• Status: Published

Opinion

Chalmers, J.,

delivered the opinion of the court.

The appellant having purchased, or attempted to purchase, at execution sale, a tract of land, which the defendant in execution had sold by title-bond before the rendition of the judgment, and of which the vendee under the title-bond held possession, filed this bill to ascertain and reach the interest of the vendor. The bill cannot be maintained. It is the settled doctrine of this court that the vendor of land by title-bond, where any part of the purchase-money has been paid, has no interest in the land which is vendible under execution. Money v. Dorsey, 7 S. & M. 15 ; Taylor v. Lowenstein, 50 Miss. 278. It seems to have been intimated in Bell v. Flaherty, 45 Miss. 694, that the execution-purchaser, under such circumstances, while he did not acquire the legal title to the land, might by bill in equity reach and subject the money due by the ven-dee. The decisions of this court lend no sanction to this view. It has been uniformly held that the vendor by title-bond occupies towards the land sold the attitude of a mortgagee ; and with equal uniformity it has been declared that, a mortgage being a mere security for a debt, the interest of the mortgagee was not vendible under execution. If not vendible, nothing, of course, passes by the sale, and the purchaser from the sheriff, having acquired nothing, has no locus standi in any court. Buckley v. Daley, 45 Miss. 338; Beckett v. Dean, ante, 232.

Decree dismissing bill affirmed.