Ballard v. Scruggs

Lubton, J. This is an ejectment hill to recover possession of two undivided one-ninth interests in a tract of six hundred acres of land. Complainants claim to have acquired the title of the defendants by virtue of judgments, levy, and sale, and exhibit a Sheriff’s deed for the intei'ests they seek to recover. Many objections have been urged to the prov ceedings under which complainants claim, only one of which need be determined. T. and E. B. Scruggs owned each a one-ninth interest in the lands in controversy. Judgments were rendered against them, and executions levied upon the interest of each as tenants in common. These two undivided interests were sold together, [587] and pui’chased by the judgment creditors, under whom complainants bold. This sale was void. Each interest should have been sold separately; otherwise, one could not redeem his own interest without redeeming that of the other. It makes no difference that each was bound for the whole debt bid on the two interests.' One might have-been able to have redeemed his interest by paying off that part of the joint debt placed on his share. The other might have been willing to have let his interest go in discharge of the rest of the debt. Another i’esult was to cut off the creditors of each from redeeming if such creditor was a separate creditor. The case falls within the principle frequently decided, that where an execution is levied upon two or more parcels of land belonging to the same debtor, that each parcel must be separately sold, in order that the debtor or his creditors may redeem one without being obliged to redeem all. Cooke et al. v. Walters, 2 Lea, 116. Before final decree, complainants amended their bill so as to pray that, in the event the execution sale should be held void, satisfaction of the judgments against the defendants might be set aside and the lien of their levies enforced by decree. Equity has jurisdiction to set aside satisfaction of a judgment at law where the sale under execution was void. Henry v. Keys, 5 Sneed, 487; Smith v. Hinson, 4 Heis., 250. In the last case, under a bill to clear title [588] claimed under Sheriff’s deed, it was held that complainants had obtained no title, because the debtor’s interest was not a legal title, but that, under an amended bill, the Chancery Court could set aside satisfaction and decree a sale of the property involved for the satisfaction of complainants’ judgment. In Shannon v. Erwin, 11 Heis., 636, the case was this: The complainants filed a bill to dear-title to property claimed under Sheriff’s deed. The Court held that complainants’ title was void for want of notice of sale to judgment debtor. It appearing, however, in the pleadings that complainant had made a valid levy, satisfaction was set aside and the lien of the levy enforced by decree under prayer for general relief. See also Christian v. Clark, 10 Lea, 636. To this relief defendants interpose the statute of limitations of ten years. The judgments and levies upon which complainants’ title depended were more than ten years old when this bill was filed. By § 3473, Code of M. & V., “ actions on judgments -and decrees of Courts of record of this or any other State of government” are barred in ten years. If this be treated as an action on a judgment — as it undoubtedly is, so far as any relief is sought by reason of such judgment — then it cannot be maintained. McGrew v. Reasons, 3 Lea, 485; Cannon v. Lamon, 7 Lea, 513. Aside from this, it is a suit to enforce the lien of a. levy made more than ten years before such relief [589] was sought. It falls within that clause of § 3473, providing that the bar of that section shall extend to “all other cases not expressly provided for.” Alvis v. Oglesby, 2 Pickle, 180, 181; Hughes v. Brown, 4 Pickle, 578. Affirm the decree dismissing bill.