Myers v. Drago Grain Co.

71 So. 874, 111 Miss. 614

Opinion

Holden, J.,

delivered the opinion of the court.

(After stating the facts as above). It appears from the record here that this controversy has narrowed down to one question, which deserves our consideration, and that is, whether or not the sale of the property in question by W. S. Welch and W. A. Mills and wife to the appellant, Walter Myers, was a legal and valid sale. If this sale was valid, then the controversy must be settled in favor of the appellant here; but if it was a void sale then the decree of the chancellor may be correct. We here quote the finding of the chancellor in his decree on this subject:

“. . . And finding further that the execution sale made of the property in question on the 4th day of September, 1911, to W. S. Welch was, at the time it was made, valid and binding, but finding further that the said Walter Myers, on account of the fact that he was sheriff of the county when the said execution sales were made, was not in position to make any profit out of the purchase of the said property from W. A. Mills and wife in the manner in which the same was consummated and evidenced by the deed of W. A. Mills and M. E. Mills to him and by the contract executed simultaneously therewith; and finding that the said deed to Walter Myers and the said contract between him and the said W. A. Mills and M E. Mills constitute a mortgage and security to 'Walter Myers for the repayment of the money expended' by him; and folding that the full measure of the relief to which the said "Walter Myers as against complainants is entitled is indemnity for the amount of money expended by him at the time of his contract with W. A. and M. E. Mills,” etc.

It will be observed in the finding of the chancellor that the sale from Welch and Mills and wife to appelant, Walter Myers, was decreed to be void “on account of the fact that he was sheriff of the county when the said execution sale was made;” that is to say, that because the appellant, Myers, acting as sheriff of the county, sold the property under execution to the said W. S. Welch, and then some time afterwards purchased the same property from the said Welch, the sale by Welch to appellant was void. In plain language, the chancellor held that on account of the appellant having previously sold the property under execution while sheriff, that he could not legally purchase the said property individually at any time thereafter. The record in this case shows that the complainant in the court below failed to prove any collusion, fraud, or deception on the part of (Sheriff) Myers,'appellant, and Welch and Mills and wife; and the chancellor in his decree specially finds that there was no collusion, fraud, or deception on the part of the appellant, nor did appellant have any understanding or agreement whatever regarding the purchase of the property before, or at the time of the execution sale made by him as sheriff. The chancellor also found that the sale made by the sheriff to the said Welch of the property here involved was a valid sale; and, in fact, the chancellor found in his decree that there was no fraud, collusion, or prearrangement by appellant with any person connected with the sale or purchase of the property; but he decreed in effect that the appellant, Myers, could not legally purchase the title to the property from the said W. S. Welch and Mills and wife because the appellant had sold the property to the said Welch under a writ of execution prior to that time while acting in his official capacity as sheriff. The evidence in this record and the decree of the of the chancellor showing that the appellant was entirely free from fraud or collusion, or even the suspicion of it, in making the sale as sheriff, and in afterwards purchasing the property as an individual, leads us to conclude that the chancellor erred in holding that the appellant, Myers, did not obtain a legal and valid title to the property here involved. The contention of appellee, which was sustained by the chancellor, that the appellant, Walter Myers, was legally incapable of individually purchasing this property from Welch and Mills and wife, because he (appellant) had previously sold it as sheriff under the writ of execution, is untenable; and as we see nothing in this record that vitiates the title of appellant to the property in question, we hold that his title is legal and valid. Therefore the decree of the lower court is reversed and a decree entered here for' the appellant.

Reversed, and judgment here for appellant.

Reversed.