Lissa v. Posey

64 Miss. 352

• Court: Mississippi Supreme Court
• Decided: October 15, 1886
• Status: Published

Opinion

ARNOLD, J.,

delivered the opinion of the court.

At common law the purchaser of land at execution sale acquired only the interest of the defendant in execution, and was liable to be defeated by any secret, legal, or equitable right existing against the title of the defendant. This rule of the common law is still in force here, except where our registry laws provide otherwise.

The registry laws protect creditors and subsequent purchasers alike, but only as against the unrecorded instruments named in such laws. They do not apply or afford protection to creditors or subsequent purchasers against equities which arise by operation of law, and which are incapable of being recorded, or which are not required by law to be recorded. As to such equities, the purchaser at execution sale remains, as at common law, a mere volunteer, and acquires only the interest of the defendant in execution. Perry, etc., v. Priebatsch, 61 Miss. 402; Miss. Valley Co. v. Chicago, etc., R. R. Co., 58 Ib. 846; Walton v. Hargraves, 42 Ib. 18. It results from these principles that appellee’s title is not protected by the registry laws.

Louisiana National Bank v. Knapp, 61 Miss. 485, supports the view that appellant had a vendor’s lien on the land in controversy, but it could not be asserted in an action of ejectment, and in such action her condition was not improved by the fact that the judgment debtor conveyed the land to her after the judgments against him had been duly enrolled. The judgments, after enrollment, were a lien on whatever interest he had in the land, which could not be defeated or impaired by his subsequent conveyance of the land. Code, § 1737 ; Cahn v. Person, 56 Miss. 360.

Affirmed.