McGehee v. Fitts

65 Miss. 357

• Court: Mississippi Supreme Court
• Decided: October 15, 1887
• Status: Published

Opinion

Campbell, J.,

delivered the opinion of the Court.

By Sec. 537 of the Code the purchaser of the land or the holder under him by descent or purchase was entitled to have the purchase money refunded by state and county. The purchaser, if he had not conveyed the land he had purchased, was entitled under the statute, and the holder under him of the land was entitled to the money from state and county,respectively, if he had parted with his interest

The right is an incident of the land, runs with it, in the language of the books as to covenants. It makes no difference .whether the holder acquires by the conveyance of the purchaser from the state or by the conveyance of the Sheriff under judgment and execution against him. In either case he is holder under him.

McGehee by his purchase and the conveyance of the sheriff acquired the right of Alston as to the land as of the date of the levy of the attachment, and the transfer by Alston of his interest and right to Fitts after the levy of the attachment was not effective to prejudice the rights of McGehee thus acquired, and after the levy of the attachment Alston could not transfer any right to the land or incident to it. His transfer did not give Fitts any right to his share of the money obtainable from the state and county. But Fitts by the use of the transfer from Alston was enabled to, and did get from the state and county the money paid for the land by himself and Alston. As to so much of this money as he was able to get as tranferree of Alston he is liable to McGehee, the holder of the title of the land under Alston.

He has money in his hands which eso equo, et bono, he is not entitled to retain from McGehee, and which he obtained from the state and county in the character of assignee of the right of Alston, after his right had become affected by the lien of the attachment.

There are cases which deny the right to maintain an action for money received under such circumstances, but we prefer to follow_those which sustain the action in such cases.

Reversed and remanded for a new trial.