Smith & Vail Co. v. Burns

Whitfield, J., delivered the opinion of the court. The lien of appellant is derived from the statute, § 2698, code 1892, not from the judgment of the court, and, by the terms of the statute, ‘' takes effect, ’ ’ as against even purchasers or incumbrancers for a valuable consideration without notice thereof, from the time of commencing suit to enforce the lien. This suit to enforce the lien was commenced before appellee’s purchase. The judgment of the court below is erroneous on the further ground that the appellee is a purchaser pendente lite. Appellant having instituted his suit, a demurrer was interposed by the original defendant, the Vicksburg Cotton Oil Company, which was sustained and the suit dismissed. Before the dismissal of the suit, the property against which the lien was asserted was advertised for sale under two trust-deeds executed by the said defendant. After the dismissal of the suit, and before appeal to this court, the sale under the trust-deeds occurred, at which the parties represented by the present appellee bought. Subsequent to the said sale, an appeal was prosecuted to the next term of this court following the term of the court below at which the suit was dismissed, and this court, at that term, the October term, 1894, reversed the judgment upholding the lien. The appellee claims that he is to be protected in his purchase under these circumstances, and that he was a bona fide purchaser of the property before the appeal was taken, and that his title cannot be affected by the subsequent reversal. The appellant is not a purchaser at judicial sale, and not [970] within the rule of Insurance Co. v. Helm, 13 Smed. & M., 182. We think it manifest that appellant is a purchaser pendente lite, and acquired a title divested by the subsequent reversal. As well said by the supreme court of Indiana (Dunnington v. Elston, 101 Ind., 373), the opposite rule “would practically destroy the right of appeal in cases where the title to land is involved, by putting it within the power of the prevailing party below to render an appeal unavailing by a transfer of the title. ’ ’ Learned counsel for appellant has collated the authorities with great care. We content ourselves with referring specially to Harle v. Langdon, 60 Texas, 555, and Clary v. Marshall, 4 Dana (Ky.), 99, in which latter case nearly ten years intervened between the making of the deed under the decree below and correction of the decree on Dill of review. The reasoning-in these cases is conclusive. In the latter the court says: “ Nor do his vendees stand in the attitude of purchasers under a judgment or decree. They voluntarily bought of him that to which he had an ostensible, judicial right, but they had bought it, not under the authority or at the instance of a court or any officer of the law, and certainly took it as his title, on his responsibility, and subject to all the contingencies to which the title of a vendor is ever liable. They bought from him, and could not have acquired thereby a better, or any other, right than he had. Iiis right was liable to defeasance; this they must have known, or must be presumed to have understood. His title has been defeated, and, therefore, theirs, which was only derivative, and depended entirely on his,.must also have failed at the same instant. After his right had been transferred to them, they stood precisely as he would have stood had he never conveyed his interest to them; and, of course, when the decree, which was the only foundation of his and their title, was annulled, no title remained in them. The superstructure fell with the destruction of its foundation. ’ ’ In Cheever v. Minton, 12 Col., 557, cited by counsel for appellee, the court expressly states that in that state (Colorado) [971] ‘ ‘ tbe writ of error ’ ’ — -which was the mode of appeal in that case — “constitutes a new and independent suit.” Without, however, touching upon any alleged distinction between appeal and writ of error — -within the operation of the principle under discussion — we are clear that, under our system, the reversal on appeal annulled appellee’s defeasible title. The judgment is reversed, the demurrer of appellant to appellee’s petition is sustained, the petition dismissed and the cause remanded, with directions to the court below to award the venditioni exponas as prayed. Reversed and remanded.