Hodge v. Mitchell

Mr. Justice Handy delivered the opinion of the court. This was an action brought by the defendant in error against [565] the plaintiff in error in Yazoo circuit court, to recover certain lands lying in that county. On the trial, the plaintiff below offered and read in evidence a mortgage executed February 3, 1841, by D. G. & R. Moore, to him, for the lands in controversy, and registered February 4, 1841. It was admitted that the defendant below was in possession, and that both parties claimed title through D. G. & R. Moore. The defendant then offered in. evidence a judgment against D. G. Moore, rendered on a forfeited forthcoming bond in Yazoo circuit court, on the 6th of May, 1839, an execution thereon tested of November term, 1844, under which the lands were levied upon but not sold, and a writ of venditioni exponas under which the lands were sold to the defendant on the 16th of March, 1846; also a deed to him from the sheriff for the same, acknowledged in November, 1846, and recorded in October, 1847. This record and deed were excluded from the jury as evidence, upon proof being made, that D. G. Moore, as whose property the lands were sold thereunder, died in the fall of 1843, and before the teste of the execution under which the levy was made, to which the defendant excepted. The defendant then read in evidence a deed for the lands from Robert Moore to D. G. Moore, executed in May, 1839. He also offered in evidence the record of a bill in chancery filed by the plaintiff in this action against several parties, including the defendant in this suit, to foreclose the mortgage upon the same property, for the recovery of which this suit was-brought; the answers of the defendant to that bill, and the final decree of the chancery court showing that the bill was dismissed.. This record was excluded from the jury, as not being pertinent' to the issue, and the defendant excepted. The judgment being for the plaintiff, the defendant sued out this writ of error. The first error assigned is, the rejection of the execution under: which the defendant claimed title, on the ground that the defendant, against whom it issued, was dead when it issued, and. at the time at which it was tested. [566] This point has been fully settled by this court in the case of Shelton’s Lessee v. Hamilton, 23 Miss. 496, which holds that a sale of land under execution issued and tested after the death of a defendant, without a revival, is not void, but merely voidable; and that a sale under it is valid until regularly set •aside in a direct proceeding for that purpose by the heir or terretenant. The same principle had been previously held, and may now be considered the settled doctrine of this court. Of course the rejection of this evidence was erroneous. Again, it was error to reject the record of the suit in chancery for the foreclosure of the mortgage upon the same lands sought to be recovered in this action. That suit was submitted, on final hearing, upon its merits, and the decree was against the plaintiff, that he was not entitled to foreclose the mortgage against the defendant. This was an adjudication of his right and title under the mortgage, which, while it remained unreversed and in full force, would bar him from setting up any title under the mortgage; for though the right both to file a bill to foreclose and to bring ejectment for the land exists, yet if he is not entitled to a foreclosure, and his bill for that purpose is dismissed on its merits, it would in effect be a discharge of the mortgage. If the decree dismissing the bill on its merits were erroneous, still it would stand as an adjudication of his right until reversed on error or otherwise duly set aside. But it is insisted in behalf of the defendant in error, that although the court erred in these particulars, yet that the judgment was correctly rendered in his favor, because the judgment, under which the plaintiff in error purchased and claimed title, had lost its lien by not having been enrolled under the act of 24th of February, 1844, and by the sale not having been made until the lapse of more than two years from the 24th of February, 1844. But although the lien of the judgment was gone, the sale under the execution was sufficient to convey the title of the defendant at least from the time it was made, except as against the superior title or prior liens. If the mortgage was discharged b,y the decree in chancery, ho superior title was shown to that acquired by the plaintiff in error under the execution sale. [567] Upon the case as presented by the record, the judgment could not, therefore, have been properly rendered for the plaintiff below. The judgment is reversed, and the case remanded. A petition for a reargument was filed by the counsel for appellee in this case, but the court refused to grant a reargument.