Speight v. Adams

1 Free. Ch. 318

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

Opinion

The Chancellor.

The bill of review must be dismissed—

1. Because the matter of the bill is not newly discovered matter, but matter of which the complainant shows he was fully advised pending the original bill, but which he says he could not procure. He should have applied for a continuance or a re-hearing. 2 Yerger, 140; 6 John. Ch. Rep. 255.

2. The matter alleged is not sufficent to susfáiii the bill, when taken in connection with other matters shown in the case, to wit: that Ewing must have sold the land — he could not, therefore, resist the payment of the purchase money, or call for a rescission, because the parties could not be placed in statu quo; and this objection must prevail equally against the surety. Collier v. Thompson, 4 Monroe, 85.

3. I am strongly inclined to the opinion that the delay of the plaintiff in enforcing his judgment for nearly four years, is to be regarded as fraudulent as to bona fide purchasers from the judgment debtor. Here the judgment was obtained in 1836. No execution issued for more than a year, and a sci.fa. to revive was not sued out until March, 1838, when the judgment was revived, but no fi. fa. was taken on this revivor of the judgment until November, 1839, and the execution was levied in January, 1840.

Let the bill of review be'dismissed.