Martin v. Kelly

Campbell, C. J., delivered the opinion of the court. C. D. Kelly exhibited this bill, claiming to be owner of the land purchased by him at the sale, under the decree in favor of J. C. Kelly & Co. The rights of J. C. Kelly & Co. as beneficiaries, under the deed of trust executed by J. D. Butler to secure his indebtedness to them, are not involved in this suit. Only the rights of C. D. Kelly, as alleged owner of the land, by virtue of the purchase mentioned, are to be passed on. He did not acquire any right as owner to the one hundred and sixty acres of land sold to J. F. Shirley before the suit of J. C. Kelly & Co. was instituted, because Butler had parted with all interest in that, and his transferee was not made a party to the suit, and, therefore, his right was not affected by the decree, and no claim can be asserted against it by reason of the decree and the sale under it. The extent of [663] the right of C. D. Kelly as purchaser, with respect to the one hundred and sixty acres of land mentioned, is to be substituted to the claim of J. C. Kelly & Co., under the deed of trust, to the amount of it paid by the sum he paid for the purchase of that parcel of land; and, as he is unable to show in what order the several parcels were sold, and what he bid for each, it may be impossible to fix his right in this respect, beyond the sum of two dollars, which was the amount of his bid on some of the parcels. The legal title of the one hundred and sixty acres sold to Shirley is in Jackson Martin, who has the right to pay C. D. Kelly so much of the sum due J. C. Kelly & Co. as was assigned to him by his purchase, and hold the land against his claim as purchaser.' The right of O. D. Kelly, with respect to the land he purchased under the decree, and which is held by E. D. Brooks, is to pay Brooks so much of the debt due Martin from Butler for the whole land, as was unpaid when Martin assigned to. i Brooks, with accrued interest and taxes. That is to be ascertained by charging the land with the sums paid by Jackson Martin to J. M. Doyle and James Armstrong respectively to obtain title, and interest at ten per cent, and all the taxes paid on the land, and giving credit for the one thousand two hundred and fifty dollars paid by the sale of land to Shirley. As equity affects the parties as if the transaction about the land had been evidenced by a contract in writing, ten per cent interest, which might have been lawfully contracted for in writing, should be allowed, in view of the stipulation of the parties for a greater rate. The foregoing view of the rights of C. D. Kelly proceeds on the assumption of his ownership, by virtue of his purchase at the sale made in pursuance of the decree in favor of J. C. Kelly & Co. against Butler, but the record confronts us with the fact that the decree was made on March 14th, and the sale was made on May 7th, and this bill was filed in June of the same year, so that no opportunity was afforded for a consummation of the sale, by its confirmation by the court, before this suit was brought, until which it was in fieri, and liable to be set aside by the court. There was not lapse of time, from which confirmation might be inferred, nor are all the parties [664] before the court in this suit, so that we may treat the sale as confirmed by the acts of the parties to the suit of J. C. Kelly & Co. against Butler. 0. D. Kelly is not J. C. Kelly & Co., although he was the active member of that partnership. This suit seems to have been brought prematurely, and, if the sale was confirmed by the court after it was instituted, that would not maintain this bill. Brown v. Bank of Mississippi, 31 Miss. 454; Candler v. Pettit, 1 Paige, 168. T. C. Catchings, and Brantley Smith, for the motion. L. Brcme„on the same side. The surety is liable not only for the costs of the court below, but of this court also. Smith v. Lockwood, 34 Wis. 72; Traver v. Nichols, 7 Wend. 434; Dwm v. Sutliff, 1 Mich. 24. The securitjr is ^given for “ all costs accrued or to accrue in such suit.” Code 1871, § 572; Code 1880, § 2360. It was a favor to remand the case, which should have been dismissed. Sweatman S? Trotter and Nugent Me Willie, contra. We have been much embarrassed in the consideration of this case, and in determining the proper disposition of it, by the fact that J. C. Kelly & Co. are not parties to it. The Chancellor, rejecting the pretension of C. D. Kelly to be the owner of the land he claimed by his bill, treated him as a creditor holding the claim of J. C. Kelly & Co. against Butler, and decreed accordingly. This is erroneous, for it is not averred or proved that he held the claim of J. C. Kelly & Co., and he did not assert any right except by virtue of his purchase of the land. We can find in the record no support for the view of the case taken by the Chancellor, and reverse the decree. Not knowing but that there may be a state of case not presented by this record, which will entitle the complainant to relief, and as he may have rights of which we are not advised, we remand the cause to the Chancery Court. After a decree was entered in accordance with this opinion, taxing the appellee with the costs, a motion was made by the appellants’ counsel, for a decree against the security given for. costs in the Chancery Court. [665] Campbell, C. J., delivered the opinion of the court. The surety for costs is liable for the costs accrued in the case in this court, to which the defendants below were compelled to resort to free themselves from the erroneous decree against them, which the complainant was enabled to obtain by means of the security for costs, but for which his case would have been dismissed. There is nothing in the statute, or the obligation assumed by the surety, limiting his liability to the costs of the court in which the suit was pending when the security for costs was given, and justice requires that he be held liable for all the costs accrued in the case and adjudged against his principal. That is the extent of his undertaking. Smith v. Lockwood, 34 Wis. 72; Traver v. Nichols, 7 Wend. 434; Dunn v. Sutliff, 1 Mich. 24. Motion granted.