Hall v. Meridian Savings Institution

56 Miss. 674

Opinion

Chalmers, J.,

delivered the opinion of the court.

This is an application by the sheriff of Lauderdale County for instructions as to the application of money made under a fieri facias.

The facts are these : Two judgments were rendered in the Circuit Court of the county, in 1877, against Brown, Randall & Co. Upon these judgments executions were issued by the officers of the court, for the unpaid costs due them. These executions were levied upon an iron safe found in possession of the mercantile firm of Brown & Griffin, who, it is said, wei’e “ the successors in business of Brown, Randall & Co.” We suppose that by this it is meant that the one firm had bought out the other. It does not appear that they were composed, either in whole or in part, of the same individuals.

The executions were returned after levy, without sale, by order of the officers of court, and shortly thereafter were assigned and transferred to appellant, Hall, whov took no further steps to enforce them.

Subsequently the same iron safe was levied on under and by virtue of an execution issued upon a judgment recovered by the Meridian Savings Institution against Brown & Griffin, which judgment was junior in date to those in which appellant, Hall, owns an interest to the extent of the officers’ costs. Asale having taken place under the junior judgment, Hall insists that he is entitled to the proceeds. He bases his claim upon the ground that the judgments of which he is part owner were liens upon the property sold, older in date and prior in right to that of appellees.

But the judgments are against wholly different parties, so far as this record shows. His judgments are against Brown, Bandall & Co. ; appellee’s is against different persons, to wit, Brown & Grriffin. If his judgments constitute the older lien-on the property sold, he is not damnified by the sale, but has the right to levy on and sell it again, the purchaser at the former sale having bought subject to his lien. It is only where there are two judgments against the same party that a sale under either passes the title and cuts off the liens, and it is only in such cases that the plaintiffs in the senior judgments are remitted to their claims upon the proceeds of sale. So, also, it is only in such cases that the sheriff has the right to appropriate the proceeds to the eldest enrolled judgment. Code 1871, sects. 830-832.

Where the judgments are against different defendants, they are wholly independent of each other, and the holder of each pursues his own course, regardless of the other. In such cases, the property remains bound in the hands of the purchaser by the older lien, and to such a sale the maxim “ Caveat emptor ’ ’ applies. In other words, such sales are not affected by our enrollment-of-judgment law, but stand as all execution sales did before the passage of that act.

Judgment affirmed.