Johnson Hardware Co. v. Ming

Mississippi Supreme Court

Johnson Hardware Co. v. Ming

113 So. 189, 147 Miss. 551, 1927 Miss. LEXIS 331

CourtMississippi Supreme Court

DecidedJune 6, 1927

DocketNo. 25701.

StatusPublished

This text of 113 So. 189 (Johnson Hardware Co. v. Ming) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson Hardware Co. v. Ming, 113 So. 189, 147 Miss. 551, 1927 Miss. LEXIS 331 (Mich. 1927).

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Opinion

*554 Cook, J.,

delivered the opinion of the court.

This cause was heretofore reversed and judgment entered for the appellant, in an opinion in which we held that, conceding that the attorney who represented the original judgment creditor had notice of the sale of the land involved or of facts sufficient to put him on inquiry, prior to the rendition of the judgment, “still the appellant, the assignee of the judgment, was not affected or hound by this notice to its assignor,” and in support of this view, we cited the case of Duke v. Clark, '58 Miss. 465, which expressly so held. A suggestion of error has been filed, in which it is admitted that the above announcement is correct and is supported by the case of Duke v. Clark, supra, but our attention is directed to the fact (which was not mentioned in the original briefs of counsel) that, prior to the time the appellant paid off this judgment and secured the assignment thereof to it, the at *555 torney who represented the original judgment creditor notified the appellant’s attorneys, by letter dated December 20, 1919, that the land in question had been sold by the judgment debtors.

This renders necessary a decision of the question, •which was reserved in the former opinion, of whether or not the proof would support a finding by the chancellor that the attorney who represented the original judgment creditor in securing the judgment had notice of the sale of the land or of facts sufficient to put him on inquiry, and. also the question of whether the letter of December 20,1919, from this attorney to the attorneys representing the appellant in its efforts to secure a discharge of the judgment by the original judgment debtors, constituted such notice to appellant as will defeat its claim of right to enforce the judgment as a lien on the land in question.

As stated in the original opinion, the testimony of the attorney who represented the original judgment creditor in securing the judgment, in regard to his knowledge of the sale of this land and his recollection of the entire matter, is uncertain in many respects, still, when his entire testimony is considered together, we are of the opinion that the chancellor would be warranted in finding therefrom that he had actual notice of the sale of the land in question prior to the rendition of the judgment, and that such notice was acquired in the course of the transaction in which he was employed, and it has been held by this court that such notice to an attorney will be imputed to and binds his client. Edwards v. Hillier, 70 Miss. 803, 13 So. 692. This being true, the judgment in the hands of the original judgment creditor did not con-, stitute an enforceable lien on the land here involved.

We are of opinion that the letter of December 20, 1919, from the attorney of the original judgment creditor to the attorneys of the appellant company, which was written some time prior to the time the appellant paid off the judgment and secured the assignment thereof, was sufficient to charge the appellant with notice of the prior sale *556 of the land, or of facts sufficient to put it upon inquiry, and that it did not become a bona-fide purchaser of the judgment without notice, with the consequent right to enforce the same against the land in question.

The suggestion of error will therefore be sustained, and the decree heretofore entered will be set aside, and the decree of the court below will be affirmed.

Suggestion of error sustained, and cause affirmed.

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*554 Cook, J.,

delivered the opinion of the court.

This cause was heretofore reversed and judgment entered for the appellant, in an opinion in which we held that, conceding that the attorney who represented the original judgment creditor had notice of the sale of the land involved or of facts sufficient to put him on inquiry, prior to the rendition of the judgment, “still the appellant, the assignee of the judgment, was not affected or hound by this notice to its assignor,” and in support of this view, we cited the case of Duke v. Clark, '58 Miss. 465, which expressly so held. A suggestion of error has been filed, in which it is admitted that the above announcement is correct and is supported by the case of Duke v. Clark, supra, but our attention is directed to the fact (which was not mentioned in the original briefs of counsel) that, prior to the time the appellant paid off this judgment and secured the assignment thereof to it, the at *555 torney who represented the original judgment creditor notified the appellant’s attorneys, by letter dated December 20, 1919, that the land in question had been sold by the judgment debtors.

This renders necessary a decision of the question, •which was reserved in the former opinion, of whether or not the proof would support a finding by the chancellor that the attorney who represented the original judgment creditor in securing the judgment had notice of the sale of the land or of facts sufficient to put him on inquiry, and. also the question of whether the letter of December 20,1919, from this attorney to the attorneys representing the appellant in its efforts to secure a discharge of the judgment by the original judgment debtors, constituted such notice to appellant as will defeat its claim of right to enforce the judgment as a lien on the land in question.

As stated in the original opinion, the testimony of the attorney who represented the original judgment creditor in securing the judgment, in regard to his knowledge of the sale of this land and his recollection of the entire matter, is uncertain in many respects, still, when his entire testimony is considered together, we are of the opinion that the chancellor would be warranted in finding therefrom that he had actual notice of the sale of the land in question prior to the rendition of the judgment, and that such notice was acquired in the course of the transaction in which he was employed, and it has been held by this court that such notice to an attorney will be imputed to and binds his client. Edwards v. Hillier, 70 Miss. 803, 13 So. 692. This being true, the judgment in the hands of the original judgment creditor did not con-, stitute an enforceable lien on the land here involved.

We are of opinion that the letter of December 20, 1919, from the attorney of the original judgment creditor to the attorneys of the appellant company, which was written some time prior to the time the appellant paid off the judgment and secured the assignment thereof, was sufficient to charge the appellant with notice of the prior sale *556 of the land, or of facts sufficient to put it upon inquiry, and that it did not become a bona-fide purchaser of the judgment without notice, with the consequent right to enforce the same against the land in question.

The suggestion of error will therefore be sustained, and the decree heretofore entered will be set aside, and the decree of the court below will be affirmed.

Suggestion of error sustained, and cause affirmed.

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113 So. 189, 147 Miss. 551, 1927 Miss. LEXIS 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-hardware-co-v-ming-miss-1927.

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