Sevier v. Ross

1 Free. Ch. 519

• Court: Mississippi Chancery Courts
• Decided: July 1, 1844
• Status: Published

Opinion

The Chancellor.

This is a motion to dissolve the injunction for want of equity in the bill, and is made upon two grounds:

First. That there is no release of errors to the judgment at law. This duty applies altogether to the defendant in execution. Here the injunction is at the instance of a third person, who asks merely to stay the execution as against his property, not to enjoin the judgment. But if it were otherwise, the court would presume a release of errors. Indeed I should hold that the emanation of the injunction worked ipso facto a release of errors.'

Second. It is insisted that the complainant’s remedy, if any, is at law. I cannot assent to this proposition. It is true as a general rule that where the personal property of a third person is seized under an execution, he will be left to his remedy at law. But the importance which' has been attached to slave property, in the slave-holding states, has induced the establishment of a different rule in regard to that species of personal property, even without any allegation of peculiar and special value; and that rule has been repeatedly recognized in this court. These technical objections are not deemed sufficient to discharge the injunction. Upon the merits of the case as disclosed by the bill, I can have no doubt that the injunction should be retained. At the time of the purchase, by the complainant, of the property, which is now sought to be subjected to the judgment of the defendants, the records of the court of law showed that the judgment had been satisfied, and that it so stood for nearly three years. Whether this entry of satisfaction was false or not, could not affect the rights of the complainant, as a bona fide purchaser without notice of that fact. There would be no security whatever to purchasers if the public records are not to be credited, when examined with a view to ascertain the existence or non-existence of incumbrances upon the property about to be purchased. These records are consulted by every prudent purchaser, and the law .will not hold him liable beyond the facts which they disclose. The execution was not only returned satisfied, but the sheriffs docket showed the receipt of the money by the agent of the plaintiffs at law. The fact that this satisfaction was set aside by the court of law and a new execution ordered, cannot have the effect of making the judgment overreach the purchase which the complainant made upon the faith of the records and files of the court showing that judgment satisfied.

The motion to dissolve for want of equity must be overruled.