Cromwell v. Craft

Tarbell, J.: In 1851, John Grigg, since deceased, sold to W. W. — 56 — Harris a certain described tract of land in Tippah county, in this state, for the sum of $3,200, of which sum he paid $800 cash, and gave his notes for the balance, Grigg giving to Harris the usual contract, or bond, for title upon full payment of the purchase money. Harris sub-sold a portion of said land to one Thos. C. Gober, giving his bond for title when the notes given for part of the purchase money should be paid. In 1852, Harris transferred his contract to James B. Ellis, as purchaser thereof, and the latter also bought in the sub-contract of Harris to Gober, and thus became the owner and possessor of the whole tract of land, subject to the prior rights of Grigg, the original vendor. In 1856, no further payments having been made upon the contract, except the $800, at the date of the original purchase, Grigg filed his bill in the vice-chancery court of the northern district of Mississippi, against Harris, Gober, and Ellis, to enforce his vendor’s lien. Ellis appeared, answered, and contested, on its merits, the proceedings of Grigg. Pending the suit of Grigg against Harris, Gober and Ellis, a judgment at law was recovered against Ellis in the circuit court of Tippah county, in favor of H. E. Debler, for $1,452.82, and upon execution sale under this judgment, the tract of land above described, was sold by the sheriff in 1866, B. S. Cromwell, the now complainant, becoming purchaser. During the war, the papers in the case of Grigg against Harris, Gober, and Ellis, were lost, and the action was revived in 1866, when it proceeded to a conclusion, resulting, on the 21st day of October, 1868, in a decree for the sale of the said land. The commissioner appointed to conduct the sale, having advertised the land for sale, the said Cromwell filed his bill to enjoin the sale, to open the decree therefor, and to obtain a rescission of the contract between Grigg and — 57 — Harris, to obtain a decree for the money paid Grigg by Harris, and for other purposes. The bill of Cromwell goes fully into the history of the contract between Grigg and Harris, and of the litigation on the part of Grigg against Harris, Gober, and Ellis, to enforce his vendor’s lien, traces the title to the land, and avers that Grigg had no title thereto, and that the contract with Harris was a fraud on the latter; refers to the judgment at law, execution sale, and purchase by Cromwell, who is claimed to have succeeded to all the rights of Ellis ; insists on an adverse holding of the lands by Ellis against Grigg; claims that the decree for sale is interlocutory and not final; and prays for injunction restraining the sale, for a rescission of the contract between Grigg and Harris, and that in virtue of his purchase at execution sale, Cromwell is entitled to a decree for the $800 paid by Harris to Grigg on contract in 1851. Some changes of parties took place during this time. Grigg having died, Addison Craft was appointed his administrator. Ellis became a bankrupt, and John D. Eermal became his assignee, and a party to the original suit. The administrator of Grigg appeared at the suit of Cromwell, answering fully to all the allegations of the bill, as did also the other defendants named. Several incidental matters are set out in the pleadings not deemed necessary to be stated here at length, such as the revival, in the name of the administrator, of Grigg, deceased, and against the assignee of Ellis, bankrupt. Upon the final hearing, on the pleadings, exhibits, and proofs, the injunction was dissolved, and the bill of Cromwell dismissed, from which decree the case comes to this court. The record is voluminous, and the arguments of counsel full and exhaustive ; but we are of the opinion that the merits of the controversy may be briefly presented, and that, in fact, one or two questions only require to be considered. — 58 — This case, as we view it, turns mainly upon the character of the decree in the action of Grigg against Harris, Gober, and Ellis, for sale of the land in controversy. The bill of Cromwell charges no fraud in obtaining the decree attacked, and hence, is not in the nature of a bill of review, nor is it so claimed, but proceeds upon the theory that the said decree is interlocutory, a,nd the complainant therefore seeks to open the whole merits of the case of Grigg against Harris, Gober and Ellis. If that decree is final, the complainant is concluded thereby. An inspection of that decree shows, and it recites, that it was made upon a full hearing “ on the. bill and exhibits, the pro confesso, and the order and decrees heretofore made in the cause.” It proceeds to establish the contract between Grigg and Harris, and that Harris, Gober and Ellis were in peaceable possession of the land under said contract. It declares the amount due on the contract at the date of the decree. It adjudges the complainant in that proceeding entitled to a specific performance of the contract. It provides that unless the defendants therein pay to the complainant therein the sum so declared due, and the cost of suit, within six months from the date of the decree, the commissioner named in the decree should proceed to sell the land on a credit of six months, and he was empowered to execute to the purchaser a deed to the premises, reporting his proceedings to the court at the term next succeeding the sale. This seems to be a final decree within all the cases to which we have been referred by either counsel, and by all to which we have had access. The counsel, in his argument, says the costs were not settled by the decree, and that other equities were reserved to be determined on the coming in of the report of sale, in which he is evidently laboring under a mistake. The decree adjudges the balance due on the contract, and the costs of suit to be paid by defendants in that action, and there is nothing reserved — 59 — except action upon the commissioner’s report of sale. Such a decree, according to all the authorities, is final. 4 How. (Miss.) 485 ; Mills v. Hoag, 7 Paige, 18 ; Tennant v. Patton, 6 Leigh, 196 ; 5 Eng. (Ark.) 333 ; 2 Munf. 523 ; 4 Porter, 73 ; 3 B. Mon. 453 ; 13 Ohio, 408 ; Robertson v. Johnson, 40 Miss. 500 ; Stebbins v. Niles, 13 S. & M. 307 ; 13 Pet. 15 ; 3 Cranch, 179. And cannot be collaterally attacked. McLeod v. Harper, 43 Miss. 42 ; Wall v. Wall, 28 ib. 409 ; 24 ib. 537. The cases of Mitchell v. Harris, 43 Miss, 314, and Redus v. Hayden, ib. 637, are wholly unlike the case at bar. There the sale only was set aside for cause. The merits of the controversy were not sought to be reopened, nor was the power to do so claimed, or declared, or intended so to be. Here the entire cause of litigation settled by the decree is attempted to he reopened and contested de novo, as thmigh it had never been disposed of. Were the decree in question interlocutory, then this case would be within the rule of 4 How. (Miss.) 485 ; Pattison v. Joselyn, 43 Miss. 378, and other similar cases. We deem it essential to refer to one other point in this case only. It is exceedingly doubtful, for two reasons, whether Cromwell acquired anything by his purchase at the sheriff’s sale heretofore referred to: 1. It is alleged in the hill, and such is its whole theory, that Grigg had no title to the land in dispute. If he had none, the purchaser at the execution sale against Ellis acquired none. 2. It is very questionable whether the interest of Ellis in this land was susceptible of levy and sale by execution; but at most he succeeded only to the interest of Ellis, and this was subordinate to the rights of Grigg, as vendor of Harris, Gober and Ellis, who were holding under him and subject to his claim for the unpaid purchase money. Ellis and those claiming through him were liable to be defeated of their pre — 60 — tensions by the superior equities of the vendor, by virtue of his lien for the purchase money. Walton v. Hargroves, 42 Miss. 18 ; see, also, Carpenter v. Bowen, ib. 28 ; and art. 12, Code of 1857, p. 808 ; ib. art. 290, p. 531. In this connection, we may remark that upon the record, as we understand it, there is another very serious obstacle to the success of the' complainant in this action, viz.: that Ellis, to whose position he succeeds, as the vendee of Grigg, went into possession under his purchase, creating a relation which continues to the present time. Under such circumstances a title adverse to that of Grigg could not be brought in by his vendee, thus holding and successfully interposed to avoid the contract. No doctrine is better settled than that, having recognized a title by purchase, and the acceptance of possession thereunder, the purchaser shall do nothing to the prejudice thereof, so long as the relation continues. As far as we can see, it is not shown by the record that Ellis or Cromwell took the necessary steps to put an end to the contract with Grigg, either by tender of the balance of purchase money due, and demand of a deed, or by surrender of possession, which had been delivered and accepted under the contract; but it is attempted, if we correctly understand the case of the complainant, to set up a title adverse to that of the vendor, while holding under him, which, we apprehend, cannot be done. The previous points considered by us, however, we hold to be conclusive upon the complainant, upon the case presented, wherefore the decree dissolving the injunction and dismissing the bill is affirmed.