Parks v. Person

1 S. & M. 76

• Court: Mississippi Chancery Courts
• Decided: December 15, 1843
• Status: Published

Opinion

Chancellor.

The substance of this case is this. Scott, who was originally the owner of a negro woman slave, named Eliza, the subject of the present controversy, sold her to Browning, who, in turn sold her to E. Parks, the mother of the complainant, and administratrix of the estate of her deceased father ; E. Parks purchased the negro on account of the estate, and the complainant, as one of the distributees of her deceased father, claims title to the woman, who was allotted to her in the distribution of the estate.

It seems that when Scott sold the woman to Browning, there was a judgment in favor of Person and Wells, against Scott, upon which an execution was then in the hands of the sheriff, which was'levied upon three negroes of Scott, the levy afterwards released, and the execution returned satisfied by the sheriff. " The levy, the •release, and the return, all took place after Scott’s sale to Browning.

At a term of the Circuit Court, to which the execution was returned, subsequently held, the return of satisfaction was vacated upon the ground that it was a false return, and that, in fact, no satisfaction had been made. Another execution issued, was levied on the negro woman Eliza, and the injunction was granted in this case, at the instance of the complainant, to stay the sale.

I should have no difficulty in decreeing a perpetual injunction in this case, notwithstanding the false return, if the record in the Circuit Court had disclosed to the cpmplainant, or to the person from whom she derives her title, that state of things which after-wards existed.

If when Browning purchased, the execution then in the sheriff’s hands had been previously returned as levied, that levy released •and a satisfaction entered, even though all the returns were false, I could have no hesitation in saying, that the lien of the judgment in favor of Person and Wells would have been so extinguished, that the property sold would not have been affected by it.

But these entries were made afterwards, and cannot affect, as they were false, a purchase made prior to their existence. The complainant bought subject to the lien of the judgment; that lien has not been legally extinguished; and if this were the only ground for obtaining the injunction, I should dissolve it.

But there is another point entitled to weight. It is this. The return of the sheriff is prima facie evidence of satisfaction, and standing alone must be taken to be true ; the record of the case in the Circuit Court does not show any notice that the motion would be there made, to have the return of satisfaction set aside as false, either to the sheriff, the defendant in the execution, or the complainant. So far as the record shows it was purely ex parte, at the instance and application of the plaintiff in the judgment at law. It was wholly irregular to entertain such a motion without notice at least to the defendant in the execution. It was out of the power of the Circuit Court to do so ; the whole proceeding was absolutely void, a mere nullity ; and this Court must protect the complainant from being injured by it.

I strongly incline to the opinion, that where a sheriff’s return is sought to be set aside so as to affect the rights of purchasers of property, from the defendant in the execution, and subject it to the lien of the judgment under which the potion is made, notice of the motion must be given to him who holds and claims the property, which may thereby be 'subjected to the operation and lien of the judgment. I give, however, no opinion on this point.

The motion is overruled.