Bank of Philadelphia v. Posey

• Decision Date: 12 February 1923
• Docket Number: 22247
• Citation: 130 Miss. 825,95 So. 134
• Court: Mississippi Supreme Court
• Parties: BANK OF PHILADELPHIA et al. v. POSEY et al

95 So. 134

130 Miss. 825

BANK OF PHILADELPHIA et al. v. POSEY et al

No. 22247

Supreme Court of Mississippi

February 12, 1923

On suggestion of error. Suggestion of error sustained, decree reversed, and judgment rendered.

For former opinion, see 92 So. 840, 130 Miss. 530.

Suggestion of error sustained and decree reversed.

OPINION

SMITH C. J.

When J R. Brantley purchased the land in controversy from Jones Brantley, the judgment rendered against him, Jones and Z. A Brantley in favor of the Milburn Wagon Company in 1907 was not only void, under the rule applied in Weis v. Aaron, 75 Miss. 138, 21 So. 763, 63 Am. St. Rep. 594; Comenitz v. Bank, 85 Miss. 662, 38 So. 35; Hardware & Implement Co. v. Marshall, 117 Miss. 224, 78 So. 7, and Boutwell v. Grayson, 118 Miss. 80, 79 So. 61, but, if valid, would have been barred by the statute of limitation, and the judgment against Jones and Z. A. Brantley in favor of the Millburn Wagon Company, rendered in 1915, on which the execution here in question was issued, was void under those decisions. Consequently, as the law was then understood and applied, J. R. Brantley acquired the land and incumbered it to the Bank of Philadelphia free from the lien of either of those judgments. If the rule applied in these cases is one of property, and if they are to be overruled, as we think they should be, the right of J. R. Brantley and of the bank to the land unincumbered by a lien because of the judgment on which the execution here in question was issued should not be disturbed, for the rule universally recognized is that, where rights of property have been acquired in accordance with the law as declared by a decision of a court of last resort, a subsequent decision, overruling the prior decision and reversing the rule of law thereby established, will not be allowed to retroact so as to destroy such rights. This rule of property now called to our attention, by counsel for the appellants was not overlooked by us when we affirmed the decree here under consideration, as will appear from the dissenting opinion then rendered, but we erred in concluding that it was inapplicable here. When a judgment by default is rendered against several persons, and one of them is not served with process, the question as to the validity vel non of the judgment as to those persons who were served with process involves primarily a rule of practice, but when the judgment affects property rights,...