Hebron v. Yerger

• Citation: 65 Miss. 548,5 So. 110
• Court: United States State Supreme Court of Mississippi
• Decision Date: 12 November 1888
• Parties: JOHN L. HEBRON v. J. R. YERGER ET AL

5 So. 110

65 Miss. 548

JOHN L. HEBRON v. J. R. YERGER ET AL

Supreme Court of Mississippi

November 12, 1888

APPEAL from the Circuit Court of Hinds County, HON. T. J. WHARTON Judge.

On the 26th of March, 1879, W. G. Yerger, as trustee of the legal title, together with Rebecca Yerger, the cestui que trust and her husband, James R. Yerger, executed to John L. Hebron a deed of conveyance of a certain tract of land, in consideration of $ 7,500 in cash, paid to Rebecca Yerger. The deed contained this covenant of title: "Said W. G Yerger, trustee, etc., makes this conveyance on request of said Rebecca Yerger, and conveys the title vested in him as trustee only, and no other. Said J. R. Yerger and Rebecca Yerger, however, covenant to warrant and defend the title to said lands."

James R. Yerger had owned this land, and had conveyed the title thereof to W. G. Yerger, for the benefit of his wife. And on 9th of June, 1879, M. Muldoon and others, judgment creditors of James R. Yerger, filed a bill in the United States Circuit Court for the Southern District of Mississippi, against James R. Yerger, Rebecca Yerger, W. G. Yerger and John L. Hebron for the purpose of establishing liens against this land for the debts due complainants by James R. Yerger, and to subject the land to sale for payment of such debts. All of the parties defended the suit except W. G. Yerger. But, on the 4th of November, 1880, the court rendered a final decree declaring the land "liable to sale for payment of said debts," the amount of which was fixed at $ 3433.64, and directing that, in default of payment of such sum, with costs of the suit, at a specified time, the commissioner appointed by the decree should sell the land and pay off the debt and costs of suit charged against it. Payment of the money due upon this decree was not made within the time allowed therefor by the decree, and the commissioner, in pursuance of the direction of the decree, sold the land, and John L. Hebron purchased the same, and on the day of the sale paid the full amount of debt and court costs ($ 3702.96) due upon the decree. The commissioner executed to Hebron a deed, dated February 1st, 1882. The sale was confirmed on the 8th day of February, 1882.

On the 21st of December, 1887, John L. Hebron filed the declaration in this case, setting forth the facts above stated, and demanding judgment for the $ 3,702.96 paid by him as stated above, with interest thereon.

The defendants, in their sixth plea, set up as a defence to the action, "That at the time of the sale of the land under the decree of the Circuit Court of the United States for the Southern District of Mississippi, the plaintiff was in possession thereof under and by virtue of a deed from the defendants and one W. G. Yerger, and had been in possession thereof for several years anterior to said sale; that the said plaintiff was then the owner, and in possession of the land, subject to the lien of the said decree of the Circuit Court of the United States, and on the 10th day of January, 1881, he was in possession, and paid to one Marcellus Green, attorney for the complainants, the sum of money demanded in the declaration; and that his right of action, if any, accrued on the 10th day of January, 1881. So the defendants say that more than six years lapsed from the payment of the said sum of money to the institution of this suit."

The defendants demurred to this plea, on the ground that the plaintiff's right of action did not accrue till the confirmation of the sale under the decree in the Circuit Court of the United States, on the 8th of February, 1882, and, therefore, was not barred by the six years' statute of limitations. The demurrer was overruled. Judgment final was rendered in favor of the defendants, and the plaintiff appealed.

Affirmed.

Brame & Alexander, for the appellant.

The errors assigned by appellant involve the question as to whether the statute of limitations began to run from the date of payment of the bid by Hebron to the commissioner, or from the date of confirmation of' the sale when his deed was ordered to be delivered to him by the court.

Our own Supreme Court has repeatedly emphasized the doctrine that the sale by a commissioner is incomplete until confirmation. We find no cases to the contrary. See Martin v. Kelly, 59 Miss. 652; State v. Cox, 62 Miss. 786; Fearing v. Shafner, 62 Miss. 791; Pool v. Ellis, 64 Miss. 555.

The circuit judge obviated the force of these decisions by holding that while the sale was inchoate until confirmation, yet the confirmation had relation back to the date of purchase.

It is of course, true that confirmation relates back, so as to cut out intervening rights and incumbrances, pendente lite, but to speak of it as conferring a right of action and relating this right of action back to a certain date is an absurdity. Any attempt to apply such a principle will demonstrate this: The purchaser cannot sue until confirmation; he must wait till then to know if he has a cause of action; his right to sue is in abeyance until confirmation, but then he...