Thompson v. McGill

1 Free. Ch. 401

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

Opinion

The Chancellor.

This case has proved with me to be one of great doubt and difficulty, resulting from its novelty, and the entire absence, so far as my researches have gone, of any adjudged case having the remotest analogy to it. I must endeavor to settle it, therefore, upon the general principles and analogies of the law.

If application had been made to this court, to prevent the sale under execution, I should have had no hesitation in awarding an injunction, because nothing can be clearer upon either principle ox-authority than that a vendee of land holding a mere bond for title, and not having paid the purchase money, has not such an interest as is the subject of a judgment lien, or of seizure and sale under an execution at law. But in this case the only persons who could raise that objection, viz. Thompson and McGill, the vendor and vendee, seem tacitly, if not expressly to have waived it and elected by their acts to consider the interest of McGill in the lots as vendible under execution. It is clear, therefore, that Thompson cannot in this controversy be heard'to say that the sale which was thus made under his own judgment, at his instance, and by his procuration, was illegal. This would be to minister to a selfish caprice, and to allow him to hold out an act as legal, when inducements of money were offered and received, and to then turn round and declare it illegal, and thus make the same property perform the same office to the fraud and detriment of confiding bidders and purchasers. The sale then having been made, and the complainant not being at liberty to question its validity, the enquiry is, what title under the circumstances of the case is to be considered as having passed under that sale, and what was the effect of it, upon the complainant’s lien for the remainder of the purchase money. The lots were levied on by the plaintiff’s execution, obtained upon a note, given as security for part of the purchase money; the proceeding was therefore in substance, one to enforce the lien which the vendor had obtained, and thus to subject the lots to the payment of the purchase money ; and although it was an irregular mode of attaining that end, yet if the only parties interested assented thereto, they at least are bound by it. Suppose the complainant had filed his bill in this court and obtained a decree of sale to enforce his lien for that part of the purchase money upon which his judgment was founded, and under which the sale was made, it will not be pretended that after a sale, under such decree, the complainant could have pursued the lots in the hands of the purchaser, upon the pretext that his lien still continued for the remainder of the unpaid purchase money. I think the same consequences must follow the mode which the complainant elected to carry out his lien, although variant in form. I know of no principle or rule of law that will allow the same property to be twice sold, either to the same or to different purchasers, for the payment of the same identical debt. This would be a new mode of converting a lean and scanty pledge, into a most ample security ; a security of one hundred dollars might be thus made adequate to the payment of a hundred thousand; for I can perceive no limit to such a process. Suppose the complainant is now allowed to subject these lots under a decree of this court, he will then not only have obtained all the security for which he contracted, but will have pocketed with impunity, and without any consideration whatever, the money which Conn paid at the execution sale for the same property, and on the same debt. This would be to allow the complainant to take a fraudulent advantage of his own conduct. The extent of the complainant’s right, was to subject the land to the payment of his purchase money, and having once done that, he cannot be allowed to repeat the process, to the prejudice of a Iona fide purchaser. I think that the interpretation which equity should place upon the conduct of the complainant, is,' that when he elected to subject the lots at law, to the payment of his purchase money, he consented to waive any lien thereon for the remainder of the unpaid purchase money, and to surrender up the legal title to whosoever should become the purchaser at such sale. It is in evidence that the complainant was present at, and assenting to that sale.

I attach no consequence whatever to the question of whether Conn was or was not advised that there was a balance of the purchase money unpaid; it was sufficient that he looked to the legal effect of the sale. Even if the question of notice was important, I should much doubt whether it was sufficiently proven. The testimony to that point is vague and unsatisfactory. Let a decree be drawn dismissing the original bill, and compelling the complainant therein to convey the legal title to the complainant in the cross bill.