Carter v. Brandy

• Decision Date: 08 January 1894
• Citation: 71 Miss. 240,15 So. 790
• Court: Mississippi Supreme Court
• Parties: JOHN A. CARTER, TRUSTEE, v. HAYWOOD BRANDY ET AL

15 So. 790

71 Miss. 240

JOHN A. CARTER, TRUSTEE, v. HAYWOOD BRANDY ET AL

Supreme Court of Mississippi

January 8, 1894

FROM the circuit court of Lee county, HON. NEWMAN CAYCE, Judge.

John A Carter, trustee, for Carter Bros. & Co. and others, brought this action of ejectment against Haywood Brandy to recover certain land. Brandy being a mere tenant of J. H. Allen, the latter was admitted to defend.

The plaintiff claims the land as purchaser at a sale under a decree of the chancery court of Lee county, rendered in an attachment suit of Carter Bros. & Co. against G. B. Oliver G. W. Barrett and others. Oliver was a non-resident, and was summoned by publication only. The complainants were creditors of Barrett, who had transferred to Oliver a stock of merchandise, which complainants sought to subject as having been fraudulently conveyed. Neither Barrett nor Oliver appeared, and, after decrees pro confesso against them, on March 20, 1891, a final decree was rendered, holding Oliver liable to complainants because of the fraudulent purchase of the goods, and, as the value of the goods exceeded the debt due complainants, the decree directed that the lands of Oliver which had been attached should be sold to satisfy the debt. From that decree Barrett prosecuted an appeal to this court, and the decree was affirmed January 25, 1892, the court holding that there was no error in the decree as against Barrett, the sole appellant. See Barrett v Carter, 69 Miss. 593.

Subsequently a writ of venditioni exponas was issued on said decree, and on January 2, 1893, certain lands therein decreed to be sold were sold, and appellant, John A. Carter, became the purchaser, taking the title to himself as trustee, and this action of ejectment was brought by him, February 13, 1893, to recover possession. Allen claims under a conveyance from the said Oliver, who is thus the common source of title. The case was tried, by consent, before the court without a jury, and after plaintiff had offered the record of the proceedings in the attachment suit in chancery, the defendant moved to exclude the testimony, because the debt attached for in the chancery suit was not of the character of debts for which attachment lies, and because no bond had been given under § 1902, code 1880 (§ 491, code 1892), before the issuance of the writ of venditioni exponas. 71 Miss.--16

Section 1902, code 1880, which is one of the sections regulating attachments in chancery, is as follows: "If a decree shall be rendered in such case without the appearance of such absent debtor, the court, before any proceedings to satisfy said decree, shall require the complainant to give security for abiding such further orders as may be made for the restoring the estate or effects to the absent defendant on his appearing and answering the bill; and if the complainant shall not give such security, the effects shall remain under the direction of the court, in the hands of a receiver or otherwise, for so long a time as the court shall appoint, and shall then be disposed of as the court may direct." This section is brought forward, with some slight change, in § 491, code 1892, which went into effect November 1, 1892.

The motion to exclude plaintiff's testimony was sustained, and judgment rendered for defendant, from which plaintiff appeals.

Affirmed.

Clayton & Anderson, for appellant.

The failure to execute the refunding bond did not render the sale void. It is not expressly provided that a sale made without such bond shall be void, and, in the absence of such a provision, the sale is valid. Voorhees v. Bank, 10 Peters, 449. Hiller v. Lamkin, 54 Miss. 14, relied on by appellee, was decided under a statute which expressly provided that sale without such bond should be void. It is generally held that where a thing is prohibited by statute, but without the penalty of invalidity being attached for violation, such violation does not render the thing done void. National Bank v. Mathews, 98 U.S. 621. See also Bank v. Sharp, 4 Smed. & M., 75; Bank v. Archer, 8 Ib., 151; 10 Wis. 230; 7 Serg. & R., 313; 14 Peters, 122; 96 U.S. 640.

The decree cannot be drawn in question collaterally. 1 Black on Judgments, § 246; Redus v. Wofford, 4 Smed. & M., 579.

J. A. Blair, on the same side.

The objection based on the absence of a refunding bond does not go to the question of jurisdiction, and therefore cannot be urged on a collateral attack of the decree. The court had full jurisdiction, and its failure to require the bond would at most be a mere error that could not be availed of on a collateral attack. See Cooper v. Reynolds, 10 Wall., 308; Voorhees v. Bank, 10 Peters, 449; 28 Miss. 412. The matter of giving the refunding bond was one of procedure, and the statute which requires the bond does not declare that a sale made without it shall be void, although § 1879, code 1871, contained such a provision.

Clifton & Eckford, for appellee.

Assuming, for argument, that the chancery court had jurisdiction in the attachment suit to subject the land of Oliver, a non-resident, no title passed at the sale under the decree, because complainants failed to execute a refunding bond, as required by § 1902, code 1880, code 1892, § 491. The sale was void, and plaintiff's testimony was properly excluded. Oldham v. Ledbetter, 1 How., 43; Freeman v. Guion, 11 Smed. & M., 58; Hitler v. Lamkin, 54 Miss. 14.

W. M....