Allen West Commission Co. v. Millstead

• Decision Date: 04 May 1908
• Docket Number: 13,304
• Citation: 92 Miss. 837,46 So. 256
• Court: Mississippi Supreme Court
• Parties: ALLEN-WEST COMMISSION COMPANY v. JACOB F. MILLSTEAD

46 So. 256

92 Miss. 837

ALLEN-WEST COMMISSION COMPANY v. JACOB F. MILLSTEAD

No. 13,304

Supreme Court of Mississippi

May 4, 1908

FROM the chancery court of Monroe county, HON. BAXTER MCFARLAND Chancellor.

Millstead appellee, was complainant in the court below, and the Allen-West Commission Company, appellant, and others were defendants there. From a decree in favor of complainant the Allen-West Commission company appealed to the supreme court.

The appellee, Millstead, obtained an injunction against the Allen-West Commission Company, appellant, and against the United States marshal for the northern district of Mississippi, to restrain the sale under execution of an undivided one-eleventh interest in certain land in Monroe county, the title to which was claimed by complainant. The appellee's bill claimed title through a deed from Robert A. Rutledge and wife, dated July 15, 1869, and a subsequent deed from Robert A. Rutledge, dated December 12, 1883, to one James M. Rutledge, whereby were conveyed to the grantee the east and west halves, respectively, of the land; James M Rutledge conveying all of the land to one John W. Rutledge who, in turn, subsequently conveyed it to appellee. However, anticipating the contention of the appellant that the above mentioned deeds of July 15, 1869, and December 12, 1883, were invalid, the bill further alleged that, if the said conveyances were invalid, then, by the death of the aforesaid Robert A. Rutledge, intestate, in 1887, his son, R. D. Rutledge, as one of his heirs, inherited an undivided one-eleventh undivided interest in the land; that in 1897, R. D. Rutledge and nine other heirs of the aforesaid Robert A. Rutledge sold and conveyed by quit claim deed all of their undivided interests in the land to one John W. Rutledge, who at once went into possession of the land and lived upon it with his mother and sister, the other heirs, until January, 1904, when he conveyed all of his interest to the appellee, Millstead; and that the appellee subsequently by purchase acquired the remaining interests of the mother and sister, and thus became vested with the absolute title in fee to the land. The bill showed that in 1892, in the United States circuit court for the Northern district of Mississippi, at Aberdeen, a judgment was rendered in favor of the Allen-West Commission Company against one R. H. Rutledge, which was promptly enrolled on the judgment roll of Monroe county, and that under the supposed lien of this judgment against R. H. Rutledge the appellant was seeking to hold and subject the interest aforesaid of R. D. Rutledge on the ground that the judgment while on its face against R. H. Rutledge was intended to be rendered against R. D. Rutledge, who, at the time of its enrollment in Monroe county, was undivested of his one-eleventh interest in the land. The bill claimed that, under the circumstances, appellant had no right to have the execution levied as against appellee, and that, although subsequently, in 1900, the judgment was revived and renewed and re-enrolled on the judgment roll of Monroe county against R. D. Rutledge, yet this also gave no right to appellant to proceed against the land or any interest therein, as appellee, Millstead, and John W. Rutledge, his grantor, each had no notice of the circumstances other than what the judgment roll showed.

Decree affirmed.

W. H. Clifton, for appellant.

The rights of the parties must be determined by the facts existing when the judgments were enrolled against R. D. Rutledge; and whether the inquiry be directed to the year 1892 or to the year 1900, the judgments must be held to be a lien upon the interest of R. D. Rutledge in the land. Code 1892, § 2457; Nugent v. Priebatsch, 61 Miss. 402.

It was a harmless mistake on the marshal's part in returning the writ of summons with endorsement thereon of service upon R. H. Rutledge instead of R. D. Rutledge. Semmes v. Patterson, 65 Miss. 6, 3 So. 35. R. D. Rutledge was actually served with the process, for the proof shows that there was no R. H. Rutledge except a little child four years of age. The error in the middle initial of the name, under the circumstances, did not affect the lien of the judgment. Healy v. Just, 53 Miss. 547; Street v. Smith, 85 Miss. 259, 37 So. 837.

The judgment lien was acquired on the land in 1892 when the judgment was enrolled in Monroe county, and this lien was kept alive by the suit in the United States circuit court to revive the judgment, in 1900. Code 1892, §§ 756, 2743, 2750; Buckner v. Pipes, 56 Miss. 366; Hall v. Green, 60 Miss. 47. In any case the appellant acquired a lien by the judgment in 1900. It will be noted that this revived judgment was enrolled in Monroe county in 1900, while the deed of R. D. Rutledge and other heirs to John W. Rutledge was not recorded until 1902. Code 1892, § 2457; Humphries v. Merrill, 52 Miss. 92; Hignite v. Hignite, 65 Miss. 449, 4 So. 345; Alsobrook v. Eggleston, 69 Miss. 836, 13 So. 850; Bentley v. Callaghan, 79 Miss. 304, 30 So. 709.

Leftwick & Tubb, for appellee.

Neither of the judgments rendered in the United States circuit court is a valid judgment against R. D. Rutlege, for the process was for R. H. Rutledge, as defendant, and the judgment as originally rendered was written against R. H. Rutledge. The subsequent reviving of the judgment does not affect the situation, for it must be kept in mind that the rights of innocent third persons have become involved. 23 Cyc., 854; Davis v. Steeps, 87 Wis. 472, 23 L. R. A., 818, 41 Am. St. Rep., 51; Code 1892, § 756; Black on Judgments, §§ 405, 406; Railway Co. v. Bolding, 69 Miss. 255, 13 So. 844.

But even if the second judgment, rendered in 1900, were valid, its rendition and enrollment did not affect appellee for the reason that appellee's grantor, John W. Rutledge, was, at the time mentioned, in actual possession of the land. A deed made by a debtor, though unrecorded, takes precedence of a judgment lien against the grantor if before recovery of the judgment the creditor has actual notice of the conveyance. Duke v. Clark, 58 Miss. 465; Devlin on Deeds, §§ 760, 777.

OPINION

MAYES, J.

We do not deem it necessary to decide whether the deed from R. A Rutledge and his wife, Eliza J. Rutledge, of date July 15 1869, conveying to J. M. Rutledge the east half of the property in question, was or was not valid. Equally unimportant, in our view of the case, is the question of whether or not the deed of December 12, 1883, made by R. A. Rutledge t...