Walker v. Fuqua

24 Miss. 640

• Court: Court of Appeals of Mississippi
• Decided: October 15, 1852
• Status: Published

Opinion

Mr. Justice Fisher

delivered the opinion of the court.

This was a bill filed by the administrator of the estate of John Emerson, deceased, to enforce the lien given by the statute on property sold by the representatives of deceased persons, to secure the purchase-money.

The defendant in error, about the year 1837, sold at public sale in the county of Yazoo, under an order of the probate court of said county, .certain slaves, as part of the estate of the intestate, which were purchased by one Thomas J. Hart, who was a citizen of the county of Madison, at the sum of fifteen hundred dollars. Hart removed the slaves to Madison county, where they were afterwards sold by the sheriff of said county, by virtue of executions in his hands against Hart, and were purchased by Walker, the plaintiff in error, at a full and fair price, without any notice of the lien for the purchase-money due the administrator of Emerson. And the question for decision is, whether this defeirce of Walker, he being a bond fide purchaser at execution sale, without notice.of the lien, will protect him. This, of course, must depend upon the construction of the statute, which says, that property sold by an administrator, &c., shall be liable to the payment of the purchase-money, in preference to any other claim against the purchaser, or the assignee of such purchaser.” Hutch. Code, 675, art. 8, § 3. In the case of Miller, Administrator, &c. v. Helm et al., 2 S. & M. 698, the court, remarking upon this statute, said that “ the imagination must first create a mortgage deed, and then transfer it to the record of the proper office, for no mortgage binds until it is recorded. That which binds as a mortgage must possess all the attributes of a valid operative mortgage. The court further said, that “ it was given for the protection of the estate; and we cannot defeat the protection which it affords, by declaring it inferior to or different from what the law has made it.” “ It is safer, on the contrary, to consider it in every particular as a mortgage, and to require all having an interest to notice it as such.” “ In addition to this, an administrator sells by order of court, and returns his account of sales, which is constructive notice to every one.” This language must be considered in reference to the point then before the court, which was, whether the claim, so far as it related to the remedy on the mortgage, should have been presented to the administrator of Davis, within eighteen months after publication for that purpose; and the court entered into this argument, to show that the remedy to enforce the lien, given by the statute to the administrator of Dickson, whose estate had been sold by the administrator, and purchased by Davis, who had died, was not affected or impaired by a failure to present the claim to his administrator within the eighteen months.

The decision will be found to have but a very remote bearing on the point under consideration in this case. If the lien is to be treated precisely “ as a mortgage deed recorded in the proper office,” the question is still open, in this case, as to the county in which the record must be considered to have been made. The sale was made in the county of Yazoo, under an order of the probate court of that county, and the purchaser, Hart, resided in the county of Madison, to which we must suppose he removed the slaves purchased. If the lien be likened to a recorded mortgage, reason and common sense would say that the record would be considered as made in that county in which the sale was made, because the evidence to sustain the lien is in point of fact of record in that county; and if it be thus confined, many cases may arise in which it would not be operative ; for we must understand in all cases, when a person residing in another county becomes a purchaser of property at such sale, that the administrator consents to a removal of the property to the county of the purchaser’s residence; and if so, the lien being treated as a mortgage, to follow the property, must be made a matter of record in such county, within a year thereafter, to be valid. And the question then would arise, How an ideal mortgage, or one, in the language of the court, created by the imagination, could be recorded ? In our opinion, the only record required is that which authorizes the administrator to make a valid sale. The record which authorizes and completes the sale, is all the record that the law requires ; and thus, without any aid of the imagination, creates a lien for the purchase-money. This view of the question is fully sustained, by the language of the statute, which says, that real or personal property sold by an administrator “ shall be held and remain subject to the payment of the sum or sums for which it was sold, and the interest and costs accruing thereon, in preference to any other claim or claims against the purchaser of such property, or the assignee of such purchaser.” The law says, that the property shall be liable to the payment of the purchase-money, in preference to any other claim against the purchaser. This language admits of no construction. The right to a prior satisfaction out of the property sold by the administrator, exists in his favor against all and every person asserting a claim against the purchaser. This right follows the property, wherever it may be taken in any part of the State, without any other record than that which was necessary, in the first instance, to create the lien itself. However broad this position may appear, it is only giving full effect to the language of the statute, which, in general and unqualified language, makes the property sold liable to the purchase-money, in preference to any other claim against the purchaser. It is, however, contended, that this language is to be controlled by that which follows, which is this: “ And' (it) shall be liable to the payment of the purchase-money, in the same manner as if a mortgage had been taken on the said property to secure the payment thereof.” The words, “ in the same manner,” relate to the lien given in the previous part of the statute, and merely designate what the lien shall be like, and points to the remedy to enforce it. The manner in which a lien may operate, or be enforced, is one thing, and the extent of its operation another. A lien created by judgment in this State at one time, was held equal to a lien created by mortgage. Yet while these liens were the samé in extent as a mere security, the manner of enforcing them was wholly different. A lien may operate in the same manner in which a mortgage would operate, and still be relieved from those things which may limit the operation of the latter. The clause in the statute, saying that the property shall be liable to the payment of the purchase-money in the same manner as if a mortgage had been taken, &c., must not be construed as limiting the lien given in the previous clause, but only as designating the manner in which the lien thus given may be enforced. If this last clause had been omitted, not a doubt could be entertained as to the meaning of the statute. The property sold by an administrator would then be' clearly liable to the purchase-money, in preference to any other claim. Can it be justly said, that the last clause was only intended to limit the sense or meaning of the language previously employed ? Clearly not. The whole law mbist be construed together, by ascertaining the end which the legislature designed to accomplish.

The title of Walker cannot be treated more favorably than the judgment creditor’s right to sell the slaves under his execution. If the law prohibited tBfe sale, it at the same time prohibited Walker’s purchase. The greatest right which could be conceded to the judgment creditor would only give him a lien on the slaves, junior to that of the complainant; and Walker could not be regarded more favorably than a purchaser under the junior lien. A prior lien is entitled to a prior satisfaction ; and a sale under the junior lien would not in the least impair the rights of the party holding the senior one.

Under any view which can be taken of the question, we' think that the defence set up cannot be sustained!

Decree affirmed.

Yerger, Judge, was counsel in the court below, and took no part in the decision.of this case.