Kilcrease v. Lum

36 Miss. 569

• Court: Mississippi Supreme Court
• Decided: October 15, 1858
• Status: Published

Opinion

HARRIS, J.,

delivered the opinion of the court.

This was a bill filed by appellees, to enforce the vendor’s lien. The appellants resist the decree on the ground that they are innocent purchasers, without notice of complainant’s lien. A decree of reference was had in the court below, a report by the commissioner, and final decree for complainants, to reverse which, this appeal is prosecuted. The errors assigned are:

1st. That the evidence, in view of the answer, did not sustain the allegations of the bill.

2d. Because the notice of the taking of the account before the commissioner was insufficient.

In view of the answer in this case, no proof was necessary as to notice. The. answer admits that immediately after the auctioneer struck off the land to the defendant, he was informed of the lien before payment. This was sufficient notice.

The rule is, that “ the purchase must be completed, before notice, or the purchaser will be affected by it. If, therefore, either the purchase-money be unpaid, or the purchaser has not completed his title, by having a conveyance before receiving notice, the notice ■will affect him; for if he receive that notice before loth of these acts are perfected, he ought to stop until the equity be inquired into, or he will be bound by it.” 2 Tucker’s Com. 450; 1 Washington R. 41; 3 Hen. & Munf. 316; 1 Munf. 38; Sugden on Vendors, 530, 556.

The next ground of error was, the want of sufficient notice of the time of taking and settling the account, by the commissioner.

We think this case comes within the provisions of the forty-eighth article of the New Code, page 547, which provides “ that in suits for the foreclosure or satisfaction of mortgages or deeds of trust, if the court shall think the complainant entitled to a decree, a reference may be made to the clerk or master, to compute the amount due, who shall proceed without notice to the parties, and make his report without delay; and no motion to confirm such report shall be necessary, but the report shall be confirmed, and a final decree passed of course, unless cause be shown to the contrary.”

This is a bill to enforce a vendor’s lien, which is but an equitable mortgage, and therefore comes within the spirit, if not the letter of the act.

Let the decree be affirmed.